Thanks to Judge Wayne Gorman, we have an illustration of the differences between public access to a criminal trial in the United States and in Canada.

Recently, the Supreme Court of Canada considered when an accused person must be allowed to testify in the absence of the public.

The United States perspective is illustrated by Justice Brenan, who wrote for the United States Supreme Court,

“[A]t the time when our organic laws were adopted, criminal trials both here and in England had long been presumptively open. And since that time, the presumption of openness has remained secure. Indeed, at the time of this Court’s decision in In re Oliver, the presumption was so solidly grounded that the Court was unable to find a single instance of a criminal trial
conducted in camera in any federal, state, or municipal court during the history of this country.  This uniform rule of openness has been viewed as significant in constitutional terms not only because the Constitution carries the gloss of history, but also because a tradition of accessibility implies the favorable judgment of experience.”

Globe Newspaper Co. v.  Superior Court, 457 U.S. 596, 605 (1982) (internal quotations and citations omitted).

But, the fact situation that the Supreme Court of Canada considered was a bit odd:

In R. v. Hart, 2014 SCC 52, July 31, 2014, the accused was convicted of murdering his two young daughters. The accused confessed to the murders during a “Mr. Big” operation.  In  such an operation the police pretend to be involved in a large scale criminal organization in which membership requires an interview with the head of the crime organization (“Mr. Big”) in which “confessing to the crime provides a ticket into the criminal organization and safety from the police.”

During his trial, the accused sought to testify with the public excluded.  The trial judge dismissed the application and the accused did not testify.

The convictions entered at the trial were overturned by the Court of Appeal.  The Crown appealed to the Supreme Court of Canada. The following issues were raised:

1) Did the trial judge err in admitting the confessions made by the respondent during the Mr. Big operation?

2) Did the trial judge err in precluding the respondent from testifying with the public excluded from the courtroom?

The Supreme Court of Canada dismissed the appeal.  It held that the accused should have been allowed to testify in the absence of the public.  In addition, it created a new common law test for the admission of “Mr. Big” confessions (such a confession is presumptively inadmissible and admissibility requires the Crown to establish on a balance of probabilities that the probative value of the confession outweighs its prejudicial effect). The Supreme Court applied this test to the confession elicited in this case and ruled that it was inadmissible.

 

THE ADMISSIBILITY OF THE CONFESSIONS

The Supreme Court of Canada held “that where the state recruits an accused into a fictitious criminal organization of its own making and seeks to elicit a confession from him, any  confession made by the accused to the state during the operation should be treated as presumptively inadmissible. This presumption of inadmissibility will be overcome where the Crown can   establish, on balance, that the probative value of the confession outweighs its prejudicial effect.  In this context, the confession’s probative value is a function of its reliability.  Its prejudicial effect stems from the harmful character evidence that necessarily accompanies its admission.  If the Crown is unable to demonstrate that the accused’s confession is admissible, the rest of the evidence surrounding the Mr. Big operation becomes irrelevant.”

As to how probative value is to be assessed, the Supreme Court held that a court must consider “the circumstances in which the confession was made” and look to “the confession itself for markers of reliability” (at paragraph 105).  The Supreme Court held that in “the end, trial judges must weigh the probative value and the prejudicial effect of the confession at issue and decide whether the Crown has met its burden.  In practice, the potential for prejudice is a fairly constant variable in this context” (at paragraph 108).

ABUSE OF PROCESS

 In addition, the Court held that trial judges “must also carefully scrutinize the conduct of the police to determine if an abuse of process has occurred.  No matter how reliable the confession, the courts cannot condone state conduct — such as physical violence — that coerces the target of a Mr. Big operation into confessing.  Where an accused establishes that an abuse of process has occurred, the court can fashion an appropriate remedy, including the exclusion of the confession or a stay of proceedings.”  The Court concluded, at paragraph 115, that the “police cannot be permitted to overcome the will of the accused and coerce a confession.  This would almost certainly amount to an abuse of process.”

TESTIFYING IN THE ABSENCE OF THE
PUBLIC

The Supreme Court of Canada noted, at paragraph 51, while “the importance of the open court principle cannot be doubted, s. 486(1)  of the Criminal Code, R.S.C. 1985, c. C-46 , provides trial judges with a discretion to exclude the public from the courtroom in several
circumstances, including where such an order is in the interests of ‘the proper administration of justice’. In Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, this Court set out three factors trial judges are to consider in making such an order: (1) the availability of reasonable and effective alternatives; (2) whether the order is limited as much as possible; and (3) the importance of the order’s objectives and its probable
effects when weighed against the importance of openness and the particular expression that will be limited.”

The Supreme Court concluded that the trial judge’s “error lay at the third stage of the test” (at paragraphs 53 to 55):

 A trial judge’s decision under s. 486(1)  is entitled to deference and “should not lightly be interfered with” (Canadian Broadcasting Corp., at para. 78).  Here, however, I am respectfully of the view that the trial judge erred in refusing the respondent’s request.  The trial judge’s error lay at the third stage of the test.  To begin, the respondent’s testimony was critically important in the circumstances of this case.  If he was to be acquitted, the jury would have to believe, or at least have a reasonable doubt, that the confessions he made during the Mr. Big operation were false.  Testifying in order to disavow them was a near tactical necessity for the respondent.  The respondent sought to testify outside of the
presence of the public in part because he was concerned that the stress of testifying in front of a full courtroom would cause him to have a seizure.  It was incumbent on the trial judge, in the unique circumstances of this case, to take reasonable steps to accommodate the respondent’s disability and to facilitate his testimony. 

Unfortunately, the trial judge mistook the nature of the respondent’s request, as is apparent from his comment that he was reluctant to prevent the public from “hear[ing]” the respondent’s evidence.  The respondent was not asking that the public be completely foreclosed from hearing his evidence.  Rather, he simply wanted to testify outside of their physical presence.  As such, his evidence could have been made available to the public, while granting his request, by broadcasting his testimony into another courtroom on closed  circuit television.  In the particular circumstances of this case, granting the accommodation sought would not, in my view, have undermined the open court principle. 

As a result, I agree with the conclusion of the Court of Appeal.  This error alone necessitates a new trial.

CONCLUSION

After excluding the accused’s confession, the Supreme Court of Canada said: “it is doubtful whether any admissible evidence remains upon which a jury, properly instructed and acting reasonably, could convict.  However, the final decision on how to proceed rests with the Crown.”