Recently, the top brass at Memorial University proposed a new Student Code of Rights and Responsibilities to replace the existing Student Code of Conduct. One of the most noticeable changes is a new section titled “Confidentiality and Privacy.” In my open letter to the Policy Office, I urged the university to desist from these terrible changes. I think it is very troubling that the university administration wants to run student discipline cases in complete secrecy and punish students who dare speak out. Openness in proceedings has been a hallmark of the common law justice system dating back hundreds of years. Experience teaches us this is the best approach. MUN seems to think they know better.
Trials are conducted openly to ensure fairness and to give all concerns parties a chance to express themselves publicly and for the public to know what the authorities are doing. MUN is eschewing longstanding principles and are rejecting what we know works and is necessary when administering justice. They are also eschewing commonsense principles of due process and fairness. They are using old, tired arguments of “protecting victims and witnesses” to advance a dangerous new process. Moreover, they are relitigating something that has been commonsense for hundreds of years and going down a road that has always led to failure around the world. The debate of protecting victims/witnesses has been litigated ad nauseam and the answer has always been clearly on the side of openness.
The Government and several law firms have made arguments in favor of open proceedings. According to the Government of Canada, an open court “is a venerated ideal of justice in common law systems” and is regarded as indispensable. The principle requires that court proceedings be open to the public and the publicity to those proceedings not be inhibited. It continues, “No less than the legitimacy of criminal justices depends on it; the fairness of criminal process and public confidence in the system are at stake.” They argue that a free flow of information encourages debate among members of the public, promoting the accountability of institutions that exercise “coercive powers against individuals.”
The McConchie Law Corporation states that the “open court” principle “assumes that public confidence in the integrity of the court system and understanding of the administration of justice is fostered by openness and full publicity.” They list four objectives:
(1) maintaining an effective evidentiary process;
(2) ensuring a judiciary and juries that behave fairly and that are sensitive to the values espoused by society;
(3) promoting a shared sense that our courts operate with integrate and dispense justice; and
(4) providing an on-going opportunity for the community to learn how the justice system operates and how the law being applied daily in the courts affects them. Accordingly, personal embarrassment or financial prejudice to an accused or to a witness is generally not a valid basis for publication ban.
Sydney Criminal Lawyers states that many people are surprised to learn that anyone can walk into a courtroom and watch proceedings. People are even free to publish media reports and articles about the court proceedings naming the defendants, complainants and witnesses and the testimony given. They state that the reason courts are “open” to the public is to promote democratic ideals of transparency and accountability. They note that the idea has been recognized for centuries and quote 19th century English philosopher Jeremy Bentham: “In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.”
Furthermore, they state that open courts are “seen as an important safeguard against injustice and corruption which could otherwise fester in a secret, closed court system.” An open court doesn’t only subject judges to greater scrutiny. It is fosters transparency in the words and conduct of defendants, witnesses, lawyers, and prosecutors. Hence, Sydney Criminal Lawyers argues that open courts act as a deterrent against lying and abuses of power.
It is still possible to stop the senior administrators at MUN from gaining sweeping new powers. Email your concerns to the Policy Office at firstname.lastname@example.org.
Matt Barter is a fourth-year student in the Humanities and Social Sciences Faculty at Memorial University of Newfoundland, majoring in Political Science with a minor in Sociology. He enjoys reading thought-provoking articles, walks in nature, and volunteering in the community.