No, You Can't Make the Court Take Down Reasons You Don't Like
Reasons for judgement were published today by the BC Court of Appeal refusing to take down or modify previous reasons for judgement that a litigant was displeased with.
In today’s case (MacGougan v. Barraclough) the Plaintiff was involved in a personal injury claim and sued for damages. In the course of litigation the Plaintiff had an outburst that ” involved the use of expletives, and pejorative descriptions of the court, which this Court described as “an obscene diatribe and bizarre behaviour”.
Reasons outline the following history of the litigation-
 The jury was discharged and the action dismissed. This and other behaviour during the course of the trial resulted in Mr. MacGougan being found in contempt of court. An appeal from the dismissal was allowed (the contempt finding was not appealed) and a new trial ordered. The issue of costs of the first trial was to be disposed of by the judge presiding at the new trial. After the Court of Appeal’s 2004 decision, no re‑trial was held. Instead, Mr. MacGougan settled his claim in 2009.
The Plaintiff applied “to have portions of the reasons for judgment issued by this Court in December 2004 redacted or to have the decision removed from the Court’s website because the reasons contain information he says is inaccurate and damaging to his reputation.”
The Court dismissed the request noting the open court principle precludes such a result. In dismissing the applicaiton the BC Court of Appeal noted as follows:
 To accede to the application of Mr. MacGougan to redact the reasons would offend the principle of finality. The Court was long ago functus in relation to the appeal heard and decided in 2004. The time to make any application in relation to any alleged errors in the reasons of the Court, or, for that matter, to anonymize reasons, is before the order disposing of the appeal is entered. Such application could only be heard by the division of the Court which heard the appeal in extant proceedings.
 If it is not open to a litigant, on an application such as the present, to call into question the reasons of a division of the Court which finally decided an issue, is it nevertheless open to the Court to restrict access to its reasons for decisions? This Court’s Record and Courtroom Access Policy indicates some of the circumstances in which the Court may entertain restricting access to its proceedings, which would include access to its reasons for decision.
 In this case the reasons of the Court have been published on the Court website for many years, and there has been republication in various other legal paper and electronic reports. Withdrawing the reasons from the Court website would not result in the withdrawal from those other paper and electronic reports.
 More importantly, in my view, restricting or preventing access to the Court’s reasons because a litigant disagrees with a description of an event or circumstances would do considerable harm to the principles of transparency, access, and the openness of our courts.
 The leading cases germane to the open court principle include Dagenais v. Canadian Broadcasting Corporation,  3 S.C.R. 835, and Re Application to Proceed in Camera, 2007 SCC 43. Public access to the courts and the reasons of the courts allows everyone the opportunity to see that justice is done, and that justice is administered in a non‑arbitrary manner in accordance with the rule of law.
 Recently Cromwell J. in Endean v. British Columbia, 2016 SCC 42 said:
 The open court principle embodies “[t]he importance of ensuring that justice be done openly”, which is “one of the hallmarks of a democratic society”: Canadian Broadcasting Corp. v. New Brunswick (Attorney General),  3 S.C.R. 480 (“C.B.C. v. New Brunswick”), at para. 22, quoting Re Southam Inc. and The Queen (No. 1) (1983), 41 O.R. (2d) 113 (C.A.), at p. 119; Vancouver Sun (Re), 2004 SCC 43,  2 S.C.R. 332, at para. 23; Named Person v. Vancouver Sun, 2007 SCC 43,  3 S.C.R. 253, at para. 31; and Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2,  1 S.C.R. 19, at para. 1. As this Court has previously remarked, “[p]ublicity is the very soul of justice”: C.B.C. v. New Brunswick, at para. 21, quoting Scott v. Scott,  A.C. 417 (H.L.), at p. 477; Vancouver Sun (Re), at para. 24; Named Person, at para. 31. And, as Wilson J. summarized in Edmonton Journal v. Alberta (Attorney General),  2 S.C.R. 1326, at p. 1361, the open court principle is rooted in the need
(1) to maintain an effective evidentiary process; (2) to ensure a judiciary and juries that behave fairly and that are sensitive to the values espoused by the society; (3) to promote a shared sense that our courts operate with integrity and dispense justice; and (4) to provide an ongoing opportunity for the community to learn how the justice system operates and how the law being applied daily in the courts affects them.
 Departing from the open court principle, which in this case would entail restricting the public right of access to the reasons of the Court, should not be embraced lightly, and, as the Court policy provides, should generally only involve exceptions recognized by law, serious risks to privacy, and other important interests such as the administration of justice. In my view, none of those exceptions are engaged here.
 The application is dismissed. There is no order as to costs.