Open Court

Table of Contents


Pleading to the Court of Public OpinionBack to Top

A Globe and Mail article about a handsomely paid American lawyer who has been employing a strategy of voluminous court pleadings conjoined with extensive pleas to the court of public opinion (projected from those fulsome formal pleadings) appeared on the same day as my pre-trial conference (March 1, 2006) in the case of Susan G. Drummond v. Rogers Wireless Inc. (SC-05-24969-00). Although lawyers have historically tended to keep their pleadings lean, pulling all their evidentiary punches, the Globe and Mail article speaks to a more recent trend for lawyers to plead more voluminously and vociferously to the court of public opinion.

Appeals to this broader, more informal, court do not take place to the exclusion of the formal court structure. Rather, pointed formal pleadings in court are conjoined with a strategy that broadcasts those materials more widely. What would interest a legal anthropologist in this interaction between the formal court and the court of public opinion, I would suggest, is not that the two courts are operating independently of each other. Rather what is intriguing is that they are operating together. Just as the Inuit might now be considered to be creatively using banishment to the southern penal system as an extension of the older practice of abandonment on the ice flows, so a parallel, and equally creative, interaction between formal and informal law seems to be at play in the customary practices of common law lawyers.

The approach to the court of public opinion appears to take engagement of the broader public one step further than the ordinary publicity afforded by our open court system. Although I find the intersection of the media (and other courts of public opinion) with the formal legal system to be a fascinating object of ethnographic study, I believe it is worth first stressing the humbler and more old-fashioned virtues of the common law’s open court system.

Open Court PrincipleBack to Top

The open court principle – one of the inspirational values of the Canadian judicial system – has a long and vaunted history. Professor Jamie Cameron provides a synopsis of the motivation that inspires the open court principle in common law jurisdictions.(1) Citing Earl Loreburn in a famous 1913 House of Lord’s decision, she notes that

“[t]he inveterate rule is that justice shall be administered in open court"...the traditional law, "that English justice must be administered openly in the face of all men" being" an almost priceless inheritance." (2) Lord Atkinson concluded in that same 1913 case that a public trial is "the best security for the pure, impartial, and efficient administration of justice, the best means of winning for it public confidence and respect".

Lord Shaw’s elaboration is perhaps more moving in contemporary times for his highlighting of the role played by the open administration of justice in the protection of civil liberties. He declared that

It is needless to quote authority on this topic from legal, philosophical, or historical writers. It moves Bentham over and over again. "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."   "The security of securities is publicity."   But amongst historians the grave and enlightened verdict of Hallam, in which he ranks the publicity of judicial proceedings even higher than the rights of Parliament as a guarantee of public security, is not likely to be forgotten: "Civil liberty in this kingdom has two direct guarantees; the open administration of justice according to known laws truly interpreted, and fair constructions of evidence; and the right of Parliament, without let or interruption, to inquire into, and obtain redress of, public grievances. Of these, the first is by far most indispensable; nor can the subjects of any State be reckoned to enjoy a real freedom, where this condition is not found both in its judicial institutions and in their constant exercises" (3)


Professor Cameron makes clear in the rest of her article that there are limitations on the open court principle. As she notes, “[t]he presumption in favour of open court is strong but not absolute, and exceptions are permissible.” In the context of her paper, protecting the privacy rights of victims may well be one of the areas where the open court principle can tolerate some exceptions.

The Canadian Judicial Council (CJC) has produced a protocol that deals with another set of limitations on the open court principle. The protocol was issued as the legal system gets up to speed with the new role of the internet in the courts’ ordinary functions. The particular question the protocol addressed was how a range of legitimate privacy rights could be protected as judgments started to be posted on-line as an extension of the inveterate but ever-adaptive rule that justice must be administered openly, now in the face of all computer screens.

Beyond the interests of the common law in an open court system, the media too have an interest in maintaining as open an access to the working of the law as possible. This is well articulated in a recent report to the Ontario Attorney General on a panel on justice and the media.

And in turn Canadian citizens in general rely upon journalists to keep us informed about what the state is doing with the law. Ignorance coagulates like rust on the wheels of democracy. And the dangers of the law being executed in private, behind closed doors, presents a terrible risk to fundamental rights.

I have some sympathy for the privacy rights canvassed by the CJC’s protocol. Indeed, in my struggles with Rogers, I myself made an argument to both the court and to the Privacy Commission of Canada that Rogers’ inclusion in the court record of my Social Insurance Number and my Driver’s License was both gratuitous and potentially damaging as it exposed me unnecessarily to identity theft.

Sympathetic as I might be to the legitimate privacy rights of parties to an action, the open court principle retains virtue for me. I can perceive the compulsion behind the measure taken by CJC to protect the public interests at stake. The courts are such a powerful institution of state that publication bans or the sealing of records operate against the interest of public scrutiny. As the CJC notes, “Providing public access to reasons for judgment is an important aspect of the open courts principle as it allows for justice to be seen to be done…  Free access to all decisions of the court also facilitates research for the legal profession, the media, and the public.” (4) Free access promotes accountability of the court.

There are other reasons, however, for shoring up the public arena of the court system; reasons that are related to my claim against Rogers in Small Claims Court for punitive damages.

Alternative Dispute ResolutionBack to Top

Legal academics and commentators have long been writing comparisons between the trial system (governed by the open court principle) and the network of alternative dispute resolution forums that have been burgeoning over the last quarter century. The nexus of ADR forums include such things as mediation, arbitration, facilitation, negotiation, and mini-trials.

The arguments for ADR stress the costs of litigation for both parties and the courts. Also relevant is the adversarial atmosphere in which the trial and court system is bathed and the damaged interpersonal relationships that stumble out of bitter court battles. The following New Yorker cartoon is a propos:


Many other critics of the formal legal system, myself included, have pointed out how the obscure procedures, institutions, and language of the formal court – indeed the very setting of the court itself, austere and stern – can perpetuate injustices for groups who already feel disenfranchised. In my first legal ethnographic work, I wrote about how the southern circuit courts that fly into Inuit communities in Northern Quebec, with all of the shacked up grandeur and bustle of empire, not only reproduce profound cultural dissonances with the Inuit legal sensibility that they aspire to regulate, but their interventions are often indeed violent in unspoken and terrible ways. The common law court does not feel impartial to the disempowered parties who appear before it; the court seems stifling and stacked against them (and their culture) from the outset. As experiments with sentencing circles sought to establish, alternative dispute resolution can expand the possibilities for protecting the members of vulnerable collectives.

While these, and other, critiques of the trial system may be both credible and laudable, there has also been an abundance of critical literature that has emerged about the alternatives to formal justice. The weaknesses of ADR as an alternative to the formal court system is starkly clear in cases such as my own, where one of the parties is an individual and the other a major corporation, with all of the attendant asymmetries of power and resources that such a contest implies.

What’s Wrong with Alternative Dispute ResolutionBack to Top

The seminal article for the debate about the virtues of ADR is Owen Fiss’s 1984 Yale Law Journal piece “Against Settlement” (5) and as Canadian jurisdictions move into mandatory mediation for civil disputes and collaborative lawyering begins to predominate in the family law field, his concerns remain central.

One of Fiss’s concerns was that negotiated settlements, arising from arbitration and mediation, or the practices surrounding settlement, tend to keep decision making authority close to the disputants themselves. Litigation, on the other hand, cedes decision making powers to a disinterested third party. The disinterested third party, in the case of the judicial systems, is state-funded, not privately financed.

The disinterested third-party of the trial judge tends to equalize power between disputing parties, partly because of its very formalism. The public sphere of the court room protects formal equality precisely through its “rules, procedures, and general decorum." (6) Although the emanations of formal justice are notoriously pinched and thin, and although the spectacle of high justice also has an aura of elitist sham and empty puffery about it, the argument advanced by those who critique ADR as a robust alternative draws on the very detachment that sometimes makes the court seem remote, if not obscure, to ordinary concerns. The obligation to formulate arguments in the circumspect and guarded way demanded by formal law, with a wary circumspection for the purview of an ostensibly impartial judge, tends to spread power out more or less equally between the parties.

In the ADR context, on the other hand, the fact that the disputants retain greater decisional authority tends to lower the parties’ guards. The idiosyncrasies of personality and position are given greater play, and discrepancies in power between the parties have greater scope to surface. Disparities in sophistication are more likely to be reflected in the bargained outcomes of ADR, as are differentials of financial resource.

That the more powerful party stands, in general, to gain from ADR can be surmised by the preference of Rogers Communications for arbitration over the courts. Rogers does not merely share the legal academic’s scepticism about outcomes in the formal legal system; Rogers has attempted to secure guarantees that it will be forever precluded from having to submit to the courts’ vagaries.

Why is Rogers so Keen on ADR?Back to Top

It is Rogers, not the consumer, who (having the power to devise a dispute resolution process of its suiting on its standard form contract) removed all disputes from the public forum of the courts. The costs of arbitration have been addressed elsewhere on this web site, as well as the material dividends to be gained from deterring consumers from using the courts. Settlements that emerge out of the shadow of the arbitration clause reflect the power of such an expensive venue to deter the ordinary consumer. But even within the venue of arbitration, given that the clause specifies that “arbitration will be conducted by one arbitrator pursuant to the laws and rules relating to commercial arbitration” the greater professional familiarity of Rogers’ legal counsel in that setting (Lang Michener, LLP, in my case – one of Canada’s major Bay Street law firms) would profoundly discourage the ordinary consumer.

Owen Fiss’s article points out another feature of alternative dispute resolution that leaves it an unsatisfactory alternative. Matters resolved through ADR or settlement are virtually never publicly joined. Typically, bargained outcomes come with a confidentiality clause which ensures the privacy of the dispute. More tellingly, ADR does away with the hallmark feature of the common law system: precedent. Because the outcome of a negotiated or mediated settlement does not issue from a judge within the recognized hierarchy of state courts, it does not serve as a legal precedent for any other case. Those parties who find themselves in a similar situation to the vindicated party cannot lean upon the experience of that process; nor, typically, do they even hear about the settlement. Unlike judgements, settlements are not normally disseminated in publicly accessible case reports.

So in the example of Rogers, while the ordinary consumer is significantly disadvantaged in knowing how other consumers, in similar circumstances, fared against the corporation, Rogers is privy to all of the negotiations and settlements that have arisen with prior disputing consumers. A corporation like Rogers has a better sense, grounded in past experience, of what works and what does not, of where an arbitrator or mediator is likely to bend, and where not.

And even before a dispute moves to a setting like arbitration or mediation, Rogers has an extensive of record of how many consumers have simply folded in frustration in the face of the pressures that Rogers brings to bear to extract a settlement. Rogers has a greater capacity to profile the psychology of consumers and to experiment with that psychology; to find out which type of consumers are likely to be anxious about a hit to their credit rating, which are easily daunted after being subjected to collection “treatment”, and which are likely to raise the devil to fight an injustice.

The privatization of disputes diminishes the opportunity to rectify wider injustices. In cases such as Rogers Wireless, where the government has left the industry unregulated (the Canadian Radio-television and Telecommunications Commission effectively completely de-regulated the Wireless phone industry in the early 1990s) the individual consumer is abandoned to the primary recourse of the raw hazards of the marketplace to resolve their concerns. They can “vote with their feet” – for another unregulated wireless provider. The privacy of ADR, whenever disputes do get elevated to those forums, leaves no record for the state of the very need for regulation. To put it in the graphic phrase of the legal anthropologist Laura Nader, “We would never have learned about the defects of the Pinto if the first case had been resolved in a private summary jury trial.”

Not Everything is NegotiableBack to Top

Another way of stating this concern about ADR is to note that not everything is negotiable; hence the principle driving a claim for punitive damages against Rogers into the public forum of a trial.

It is consistent with the punitive damages cause of action that I am pursuing in my Small Claims Court action that as much of the record as possible remain as public as possible. An award of punitive damages is meant to act as a deterrent for the Defendant. A private settlement of our dispute, even with a discrete acknowledgement of fault for high-handed and reprehensible conduct, would serve as no deterrent at all.

The Ponderous Living Tree of the Common LawBack to Top

The sentiment that not everything is negotiable and that some matters of principle should be vindicated openly, in the ambient decorum of an open court, speaks to the common law sensibility that the common law courts are also legitimate and worthy forums to air a sense of injustice. For over a millennium, those courts have been a ponderous centre of gravity for British and Commonwealth subjects, and for those who otherwise come under the jurisdiction of the common law tradition.

Settlements are hived off from this “living tree” of the common law. They don’t share in the active and public creation of a common sense of justice.

The legal anthropologist Lawrence Rosen describes the way that the qadi courts of Islamic law and jurisprudence are similar in development to the way that the common law grows. He provides a simple analogy for the way that jurisprudence emerges in both:


“In the West children (and sometimes adults) play a game in which a chain story is created: Each person takes a turn moving the story along and each new person who takes over must maintain some consistency in the narrative while being free to take the story in other directions. Scholars of the common law have also used the image of the chain story to great effect describing the way one court’s views are carried along by the next, an image that is all the more fitting in the present context since, as I have argued elsewhere, Islamic law may be seen as a variant of common law.” (7)


Common law precedent, he suggests, develops in the same way that a chain story develops. One judge will write a judgment. The next judge must maintain some consistency with what was written before (in legal terms must maintain the ratio decidendi of the prior case) but also retains some liberty to develop the law that is common between the first judgment and her own by taking the story (the ratio) in new and unforeseen directions.

It’s a shared story. And the judge will be judged by how well or poorly he carries the shared story further.

It’s a shared story, which means more than the first and second teller are attending to the tale. There is a larger audience, to whom the story also belongs.

The Noisy Oversight of the Court of Public OpinionBack to Top

Arbitration, in this metaphor of the courts, operates to some extent like a private chat room on an ongoing blog. It is the nature of arbitration that it is typically private, that the agreements arrived at are bound by confidentiality, that no precedent is set as no judgment (by those tasked in the common law to generate one) is made. In ADR, a second story is spun out of the rudiments of the first, but it never loops back into the shared story. ADR forms a stagnant eddy in the stream of the common law.

Extending the internet metaphor, it is true that all of the public access and scrutiny of the blog increases the pressure to conform to the compulsions of the dominant narrative and as a result, timid tales might get more of a chance to flourish in a private chat room. But when a major corporation forcefully insists on arbitration with all of the coercive subtlety of invitations to contract with a service in an unregulated industry, the chat rooms of arbitration, away from the public access and scrutiny of the common law, appear more like the secretive and predatory use of private chat rooms on My Space. There’s none of that noisy oversight of the blog. Which is precisely the problem: there’s none of that noisy oversight.

This reference to the boisterous social control of oversight and commentary brings me back to the relation between the court of public opinion and the formal court system. Although voluminous and vociferous pleadings in an age of Public Relations and Corporate Communications are perhaps more pointedly self-conscious about the parallel shadow audience sitting alongside the judge and jury, the shared dialogue between the open court and the public to whom it is open has long comprised the elaborate and complex chain story of western law. Like two parties on a single seesaw, the movement between the court of public opinion and the formal court – a movement that in its entirety might be described as a central set on the playground of the common law – is in dialogue.

(1) Professor Jamie Cameron, “Victim Privacy and the Open Court Principle”; Paper published on-line by the Research and Statistics Branch of the Department of Justice, Canada, March 2003 see:

(2) Scott v. Scott, House of Lords,[1913] A.C. at 445, 447, and 463

(3) Scott v. Scott, House of Lords, [1913] A.C. at 477

(4) Canadian Judicial Council, Use of Personal Information in Judgements and Recommended Protocol, February 4, 2005 on-line publication,

(5)93 Yale Law Journal 1073 (1984)

(6)Janna Promislow, unpublished remarks on ADR in the Residential School context, April, 2005. Janna was extremely helpful to my formulation of the concerns that I raise on the “Public Interest in Trial Proceedings” web page.

(7)Lawrence Rosen, The Culture of Islam; Changing Aspects of Contemporary Muslim Life (Chicago and London: Chicago University Press, 2002) at 3


© February, 2006, Susan G. Drummond - Do not circulate or cite, in whole or in part, without permission.