Restricting Public Access to In-Person and Electronic Hearings
Interpretation Guideline 18

(Disponible en français)

Rule 24 of the Board's Rules of Practice states that hearings will be open to the public unless the Member believes that there is sufficient reason to deny public access. Hearings closed to the public are called in camera hearings.

The right of the public to attend a hearing is based on the principle that the public is entitled to access to tribunals that decide disputes in a quasi-judicial proceeding. Parties and members of the public should be aware that Board hearings are open to the public, subject to the provisions for a closed hearing set out in section 9 of the Statutory Powers Procedure Act (SPPA). Section 9 provides that a hearing shall be open to the public except where:

• matters involving public security may be disclosed; or
• intimate financial or personal matters or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public.

Factors that the Board may consider under the SPPA include:

• whether the request to close the hearing is based on something more than a mere desire for privacy;
• whether the disclosure of certain information would cause harm to public security or to the government, including consideration of the disclosure of confidential economic information, information concerning issues of national security or information concerning on-going police investigations;
• the potential harm a party may suffer if intimate details of their private life, including, financial and/or health information, were made public;
• the negative impact that access to the public may have to the ability of the parties to properly present their case;
• whether the case involves allegations of sexual assault, harassment, or child abuse and the potential identification of victims of sexual assault or child abuse;
• whether a timid witness' testimony would be compromised if not given in a closed setting;
• whether the case involves information about a young offender.

Electronic hearings

In some cases, the Board will hold an electronic hearing, usually by telephone or video conference. The SPPA requires that an electronic hearing be open to the public unless the Board is of the opinion that it is either not practical to hold a hearing that is open to the public, or one of the criteria for closing the hearing applies to the application.

There are a number of practical reasons why electronic hearings conducted by the Board may not be open to the public. For example, the hearing room may not be large enough to accommodate the public as well as the parties, their witnesses and the Member. Further information regarding electronic hearings can be found in Rule 21 of the Board's Rules of Practice.

Media interests

Section 2(b) of the Canadian Charter of Rights and Freedoms (the "Charter") provides that freedom of expression, including freedom of the press, is a fundamental freedom. Having regard to the Charter, where the Board considers a request to hold the hearing in camera, members of the media who are present at the hearing should be given the opportunity to make submissions regarding whether the hearing should be closed. Where the media opposes a request to close the hearing, the Board may:

1. decide to close the hearing;
2. keep the hearing open; or
3. hold an open hearing but issue a publication ban on evidence heard at the hearing.

When will the Board deal with a request for an in camera hearing?

It is appropriate for a Member to hear a request for an in camera hearing as a preliminary motion. In deciding whether to restrict access to the hearing, the Member may hear evidence and submissions from the parties, their representatives and any other interested person (such as a member of the media) in a hearing room closed to the public. On the basis of the evidence and submissions, the Member will decide if the application itself will proceed as a hearing open to the public or in camera.

If the Member decides to hold the hearing in camera, access to the hearing will be limited to the parties and their representatives. Witnesses may be excluded in any hearing, whether open or in camera, by an order excluding a witness until the witness has given evidence. In some circumstances the hearing will be closed for only that portion in which the sensitive information is disclosed.

In order to avoid or reduce inconvenience to other parties and members of the public, a Board Member may deal with the request at of the end of the hearing block. Alternatively, a Member may proceed with a party's motion to close the hearing in the absence of the public, and, if the Member decides that the hearing itself should be closed, the Member may direct that hearing to be held down to the end of the hearing block, or, may adjourn it to another day.

Where a hearing is closed to the public, the Member will record the hearing separately from the other hearings in a hearing block.