The law largely controls the degree to which the open court principle is respected. “Legal culture,” however, has as much to do with the fortunes of the “open court principle” as does the law. The law often provides only standards — not clear answers. The extent to which the open court principle is respected the refore comes down to attitude or the commitment to it among justice system participants. We are fortunate that this is a country with a long and demonstrated commitment to the open court principle. The terrorist attacks of 2001 have ushered in a heightened sense of purpose and secrecy on the part of government and the intelligence and law enforcement communities, all in the interests of that profoundly powerful goal of “national security.” National security is being invoked, however, with increasing frequency. The attitude that gives priority to national security concerns challenges the open court principle in criminal cases. While it is to be expected, it is worrisome because it is precisely in times of national insecurity that the open court principle takes on special urgency. After all, one of the roles of the open court principle is to ensure that individuals brought before the courts for prosecution are being treated fairly. The other role of the open court principle is to secure democracy, yet, as has also been observed, “the powers necessary to defeat terrorism and suppress insurrection [including state control on the flow of information] are the very ones needed to enforce a tyranny.” Unless those responsible for the administration of the open court principle – the executive, government officials, line peace officers and of course courts — turn their mind to the issue and reaffirm their commitment to leave our courts as open as they can be in this age of insecurity, our freedom and democracy will be diminished more than it need be. Society will suffer for it, and so too will some individuals.
Paciocco, David M..
"When Open Courts Meet Closed Government."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
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