Redacting Exhibits in Public Hearings

The Courts have recently emphasized the “open court” principle that hearings, and exhibits filed at hearings, should be publicly available in most circumstances. In Turner v. Death″> the Court has provided guidance on the application of this principle to regulatory bodies. In that case, a complainant sought judicial review of the handling of a complaint against the Chief Forensic Pathologist of Ontario. The regulator sought guidance on whether its file could be sealed or, at least, the identities of the participants could be redacted. The Court found that the stringent test for sealing the file was not met. Even for the autopsy files, it was sufficient for the identities of the children who were examined and their families to be redacted.

The Court also held that there was an insufficient basis for redacting the identities of the individuals interviewed despite their being given assurances of confidentiality for participating in the investigation. They were not vulnerable witnesses (being coroners and pathologists) and there was no evidence to support their concern of potential repercussions and reprisals. In fact, the Court felt that making their participation public would better protect them from reprisals than keeping their identities secret. The assurance of confidentiality should not have been given. The documents would not be redacted to conceal their identity.

Regulators can draw lessons from this decision on when redaction of files that may later be made public can be justified.

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