Does the Code of Civil Procedure Really Override the Charter?: The SCC’s Reasons in MediaQMI v Kamel
The open court principle has long been a protected right under s. 2(b) of the Canadian Charter of Rights and Freedoms [Charter]. In 1989, the Supreme Court of Canada (“SCC” or “the Court”) confirmed that “the courts must be open to public scrutiny and to public criticism of their operation by the public” (Edmonton Journal v Alberta,  2 SCR 1326, 1337 [Edmonton Journal]). In its recent decision in MediaQMI inc v Kamel, 2021 SCC 23 [MediaQMI], a split SCC held that the open court principle does not extend to the public’s consultation of exhibits in court records once the exhibits have been retrieved by the action’s parties pursuant to article 108 of the Quebec Code of Civil Procedure, CQLR, c C-25.01 [Code]. Although the decision is limited to Quebec’s civil law system, the Court’s reasons in MediaQMI show a stark divide among the Court’s Quebec justices—with Justice Côté penning the majority reasons, and Chief Justice Wagner and Justice Kasirer writing the dissent—in their interpretations of the Code’s provisions and their interaction with the open court principle. The majority’s reasons imply that where a codification of a constitutional principle is enacted in legislation, such statutory authority overrides the Charter. Meanwhile, the dissenting justices stress that rules of civil procedure cannot be used to circumvent fundamental norms and rules of public order.
Background & Judicial History
In October 2016, Centre intégré universitaire de santé et de services sociaux de l’Ouest‑de‑l’Île‑de‑Montréal (“CIUSSS”), a provincial health agency, commenced an action against its former employee, Magdi Kamel, for misappropriation of funds. CIUSSS brought an application to obtain the identity of the bank account holder where the funds were allegedly deposited. In support of their application, CIUSSS filed four exhibits to the court, including a confidential report by a forensic accountant. The Quebec Superior Court allowed CIUSSS’s application and ordered the record be sealed.
The proceedings subsequently caught the attention of the media, and newspapers published by the appellant, MediaQMI, began reporting on the matter. In March 2017, MediaQMI brought a motion to unseal the record pursuant to article 11 of the Code and s. 23 of the Quebec Charter of Human Rights and Freedoms, CQLR, c C-12 [Quebec Charter]. Article 11 provides that “anyone may…have access to court records and entries in the registers of the courts” with one of the two exceptions being if “the law restricts access to the court records or to certain documents filed in a court record.” Lastly, article 11 states that the exceptions “apply despite section 23 of the [Quebec] Charter of human rights and freedoms…”. Section 23 of the Quebec Charter protects the right to a fair, public and impartial trial.
In April 2017, before MediaQMI’s motion could be heard, CIUSSS discontinued its action and attempted to retrieve its filed exhibits pursuant to article 108 of the Code. Article 108 provides that evidence filed within the court record as exhibits “must remain until the end of a proceeding, unless all the parties consent to its being removed” and that once a proceeding ends, the “parties must retrieve those exhibits” or the court clerk may destroy them one year later. MediaQMI opposed CIUSSS’s request and sought access to the exhibits before the parties could retrieve them.
Superior Court Decision
The motion judge agreed to unseal the record (Centre intégré universitaire de santé et de services sociaux de l’Ouest-de-l’Île-de-Montréal c. M.K., 2017 QCCS 4691). He reached this conclusion on the basis of the Dagenais/Mentuck test, which requires:
- that an order for a publication ban/sealing order is necessary to prevent a serious risk to the administration of justice if no reasonable alternatives will prevent such a risk; and
- that the salutary effects of the publication ban/sealing order outweigh the deleterious effects on the rights and interests of the parties to the action and members of the public, including rights such as the right to freedom of expression, the right to a fair and public trial, and the efficacy of the administration of justice (see R v Mentuck, 2001 SCC 76, para 32).
The motion judge found there was “insufficient evidence to depart from the principle of open court proceedings,” since Mr. Kamel and CIUSSS’s main arguments to maintain the sealing order were to avoid embarrassment and negative publicity (MediaQMI, para 8).
However, the motion judge denied MediaQMI’s request to consult the filed exhibits, as the rights of the media, encompassed by the open court principle, did not override the parties’ freedom to “retrieve all exhibits from the record and to shield them from public scrutiny” under the Code, especially since the action had been discontinued (MediaQMI, para 9). As a result, CIUSSS was authorized to remove its exhibits from the record without disclosing them.
Appellate Court Decision
The Quebec Court of Appeal (“QCCA”) dismissed MediaQMI’s appeal in a 2-1 decision in three sets of reasons (MédiaQMI inc. c. M.K., 2019 QCCA 814). Dismissing the appeal, Justice Samson reasoned, first, that because CIUSSS and Mr. Kamel had terminated the proceedings, MediaQMI had no jurisdiction to bring its motion to retrieve its documents, and second, that article 108 does not confer a discretion to the court to make an order on the openness of proceedings, and therefore the Dagenais/Mentuck test does not apply. Justice Schrager also dismissed the appeal, but on the basis that the discontinuance created “a legal fiction” which put “the parties back in the position they were in prior to the court proceedings” by taking exhibits out of the public domain and back into the private sphere (MediaQMI, para 12).
Dissenting, Justice Marcotte found that article 108 could not be used as a rule to evade the open court principle, and that because the motion to unseal was brought before CIUSSS’s discontinuance, the motions judge should have determined whether the exhibits were in fact confidential before allowing their retrieval.
SCC Majority Reasons
On appeal to the SCC, MediaQMI argued that the scope of the open court principle articulated under article 11 ought to be analyzed in light of the rights and protections guaranteed by both the Quebec and Canadian Charter relating to court openness. Justice Côté, writing for five justices, rejected this position and held that the legislature is “free to fix the scope of that principle in the rules it enacts,” as it “is not the role of the courts to conduct that exercise in its place” (MediaQMI, para 20). In her view, the legislature intended article 11 to codify the openness principle, but that it also be subject to certain exceptions for confidential information, which may include exhibits retrieved under article 108.
In determining the proper scope of the articles, Justice Côté focused on the broader objective of the Code, which is to facilitate the resolution of disputes between private parties. She found that such an objective “would surely be undermined if parties who wished to come to an agreement after taking a matter to court could not bring the documents they had filed with the court back into the private sphere” (MediaQMI, para 51). She considered the inherent privacy interests at play in the resolution of such disputes, and found that while litigants must “temporarily” waive their right to privacy by filing exhibits into a court record, requiring a court to apply the Dagenais/Mentuck test even where the exhibits have already been removed would “make the waiver a permanent one” (MediaQMI, para 52). According to Justice Côté, such an approach would be inconsistent with the legislative intent of article 11, the Code’s objectives, and would be unworkable under article 108’s current wording. As a result, the public can access exhibits that are filed in court records at the time of consultation; if the parties have already retrieved their exhibits or the court clerk has destroyed them, then the public has no right of access.
Furthermore, Justice Côté emphasized that articles 11 and 108 do not provide the judicial discretion necessary to apply the Dagenais/Mentuck test. The only situation in which the test would apply, she held, would be an article 11 motion—in conjunction with other articles that confer discretion to the court—that challenges the integrity of the judicial process in the retrieval of an exhibit.
Application to the Case
Justice Côté found that MediaQMI could have consulted the exhibits in question in the time between the motion judge’s decision to unseal the record and CIUSS’s retrieval of the exhibits the following day. While this tight turnaround period might be a “race against time” for media interveners, Justice Côté simply viewed this as a consequence of the Code’s provisions, and as a result, MediaQMI’s right to access the record was “never compromised” (MediaQMI, paras 64-65).
According to Justice Côté, the fact that MediaQMI brought a motion to unseal did not prevent the parties from discontinuing the proceedings and exercising their right to retrieve their exhibits. An article 11 motion, she stated, “does not give the moving party any right to require that the content of the court record remain unchanged until the motion is decided” (MediaQMI, para 67). If MediaQMI wanted to prevent the parties from exercising their rights under article 108, they would have had to contest the discontinuance itself, which it did not do. As a result, MediaQMI was not entitled to receive a copy of the exhibits in the court’s record at the time the motion to unseal the record was filed.
Dissenting SCC Reasons
Writing for the remaining four justices, Chief Justice Wagner and Justice Kasirer concluded that MediaQMI’s application should be remanded to the superior court and assessed using the Dagenais/Mentuck test. Their analysis gave particular attention to the fundamental importance of the open court principle in the justice system. In the Chief Justice and Justice Kasirer’s view, although the Code does aim to provide litigants with certain powers and abilities to control their proceedings, these rights “[do] not extend so far as to allow [parties] to directly or indirectly shield the content of their record from public scrutiny and thereby circumvent the fundamental principle of open proceedings” (MediaQMI, para 101).
The Chief Justice and Justice Kasirer were concerned that the majority’s interpretation of the Code could result in a wholesale evasion of the open courts principle. The justices noted that in the same way a discontinuance of an action cannot be relied on by litigants to avoid third parties’ legitimate interests or rules of public order (such as the open court principle), article 108 of the Code also cannot be relied upon to remove exhibits from the record after a motion to unseal has been filed pursuant to article 11. In their view, “[t]he judicial process cannot condone a form of private justice in which parties decide between themselves how a court proceeding will be conducted without regard for the open court principle” (MediaQMI, para 120). Additionally, the Chief Justice and Justice Kasirer noted that the parties’ ability to control proceedings—as was emphasized as a fundamental objective of the Code in Justice Côté’s analysis—as an end in itself would contradict with the “well-established principle that the Code’s provisions must be interpreted in harmony with the Quebec Charter and the general principles of law” (MediaQMI, para 125). The courts cannot disregard fundamental principles and constitutional principles in favour of strict interpretations of statutory rules.
In applying this analysis to the case, the Chief Justice and Justice Kasirer found that as soon as MediaQMI brought its motion to unseal the record and access the exhibits, a new proceeding was created that could not be defeated by CIUSSS’s subsequent discontinuance. The justices held that the motion to unseal “went beyond the strictly private interests of the parties to the principal litigation: it was of concern to the public and concerned the legitimacy of the judicial institution and the functioning of the justice system itself” (MediaQMI, para 128). As a result, the court should have used the Dagenais/Mentuck test and Sierra Club v Canada (Minister of Finance), 2002 SCC 41 framework (which determines whether a confidentiality order should be granted in the civil context) to determine whether MediaQMI could access the exhibits. If the court were to grant such access, MediaQMI would have access to the records as they existed at the time the motion was filed; CIUSSS’s discontinuance, therefore, would not have been used to deprive MediaQMI’s of its right to argue the motion and access the exhibits (MediaQMI, paras 129-131).
The majority’s reasons in MediaQMI appear to suggest that the Code may override the Quebec or Canadian Charter. Justice Côté’s analysis hinged on the notion that if the Code has provided a fixed application of the open court’s principle in its rules and made it subject to certain exceptions, then whether such an application conflicts with broader constitutional norms and protected interests is of no moment. She suggested that the balancing of competing interests between the Code’s rules and the Charter rights at play could only be addressed if MediaQMI had brought a constitutional challenge of articles 11 and 108. However, if court openness is presumed, which the Court has affirmed on multiple occasions (see e.g. Vancouver Sun (Re), 2004 SCC 43 [Vancouver Sun]; A.B. v Bragg Communications, 2012 SCC 46), then it seems counterintuitive to suggest that a party, such as the media, who already holds the right to access the courts would need to affirm it through a constitutional challenge.
The dissenting reasons, however, are more alive to the reality that legislation affecting the public’s rights to access the courts cannot be considered in a vacuum. The Chief Justice and Justice Kasirer highlighted the media’s role as a “surrogate for the public” and noted that any impediment on the press’s ability to execute that role must be considered in accordance with the frameworks and principles articulated by the SCC throughout its s. 2(b) Charter jurisprudence (MediaQMI, para 130, quoting Edmonton Journal).
The majority’s reasons are also difficult to square with the SCC’s decision in Sherman Estate v Donovan, 2021 SCC 25 [Sherman Estate], which was released just two weeks following MediaQMI. In Sherman Estate, the Court unanimously affirmed that assertions of privacy which do not strike at the biographical core of litigants are insufficient reasons to override the openness principle. This holding runs counter to the majority’s reasoning in MediaQMI, where the preference to resolve litigation privately took precedence over the public’s right to access court records. If a matter concerning the openness principle under the Code were to arise again, it would be interesting to see how future courts will reach conclusions that appropriately address the holdings in MediaQMI and Sherman Estate.
Finally, the divide among the Quebec justices both in the case’s disposition and in their reasoning of MediaQMI is noteworthy. On the one hand, Justice Côté’s decision to remain close to a literal application of the Code’s text could likely be due to the nature of Quebec’s civil law system itself, which gives precedence to legislation and codes. On the other hand, Chief Justice Wagner and Justice Kasirer’s reasons give greater priority to Quebec case law and constitutional analysis so as to provide a harmonious and comprehensive interpretation of the provisions in their interaction with the open court principle. While purists might argue that Justice Côté’s reasoning is more appropriate in relation to the civil law context, it should not be ignored that two out of the three Quebec justices took the more principled and expansive approach that situated the Code’s provisions in light of its broader constitutional framework. If the Court wishes to continue its trajectory of upholding the open court principle as a “hallmark of democracy” (Vancouver Sun, para 23), then perhaps it may wish to revisit its reasons in MediaQMI on a future occasion.
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