What Does it Mean to be ‘In Camera’
The term "in camera" means in chambers or in a private or closed place. In court terms it means in a closed proceeding and refers to a situation in which a judge, or the panel of judges, meet in private, without the presence of any parties or the public, to hear motions, pre-trial motions, or other proceedings. Although the proceedings are held privately, it can in many situations be transcribed. The term "in camera" is possibly derived from the Latin phrase "in camera papali", from an earlier time when judicial proceedings took place in rooms adjoining the chapels of ecclesiastical courts and always referred to private proceedings. In some instances, should someone wish to assert the privilege of confidentiality as against the public by such a proceeding in a court of law, the ensuing proceedings might be held "in camera," especially if some or all parties are considered to be minors or if confidential matters are involved. An "in camera" proceeding is simply a proceeding held outside the presence of the public. It is understood to be held without all the parties being present , or knowing it is even being held. However, there must be grounds for doing so, as the Appeals Court will not generally interfere with a trial court’s discretion in this regard. The conducting of an in camera proceeding in front of a judge is not open to the general public and at least in principle, can be divorced from the trial itself. It also means the similar as far as the appellate courts are concerned. However, the appellate courts are free under their admission rules to outlaw all such proceedings. They may also be more deferential to "in camera" conduct than the trial court because it is more difficult to appeal from an "in camera" hearing than from a full-blown judicial proceeding on the record. Nevertheless, the apprehension that the judge might act in secret is usually groundless, as might be concluded in situations involving sensitive matters regarding minors or confidential matters.
Purpose of ‘In Camera’ Court Sessions
A court may order "in camera" proceedings for any number of reasons, ranging from simple privacy issues to the protection of highly sensitive and/or confidential information. In all cases, the name of the game is to shield some or all of the proceedings from view of the public.
Inherent in all court proceedings is the assumption of absolute transparency by the public. "In camera" is not the first step down the slippery slope of secrecy, but it is a move off the main path of openness in court proceedings. It is an action that exists to increase or adjust the balance long presumed to favour the public right to know about what is going on.
Only in exceptional circumstances should the public right to openness give way to other considerations, and even in these cases, the process of going "in camera" raises the legitimate concern that there will be a significant temptation to keep going.
"To be sure, the judicial process must be open in a very substantial sense: The public must be able to have access to the proceedings and to documents that bear directly on the outcome of a case. But for some purposes — for example, when the State’s prerogatives under the public safety exception are involved — it may be proper to restrict access to certain materials." United States v. Sealed Case (No. 99-3093), 156 F.3d 839 (D.C. Cir. 1998). See also United States v. Rodriguez, 433 U.S. 671, 679 (1977).
Next time, we’re going to take a look at the different contexts in which cate may be had.
Legal Basis for ‘In Camera’ Sessions
As a general rule, in camera sessions are rare except in exceptional circumstances. The courts and the Criminal Proceedings Rules contain various provisions that permit the trial judge to hold in camera proceedings. Rule 15.9 of the Criminal Proceedings Rules 2011 (see below) is a good example of a rule permitting in camera proceedings under certain circumstances.
15.9 Conduct of proceedings
(1) The court may take steps to prevent live text commentary by any person in the court room, including by –
(a) prohibiting any person from taking any electronic device into court or into part of the court,
(b) imposing conditions on the use of any such device,
(c) excluding the public from the courtroom or from any part of the court, or
(d) holding the whole or any part of the proceedings in private.
(2) Where the court has excluded the public from all or part of the court, the court must consider whether the proceedings should nevertheless be made available using live text commentary for attendance by any other court.
(3) The court must exclude the public from court or a part of court when one or more of the following applies —
(a) the court is hearing or determining an application relating to recording and broadcasting;
(b) the court is hearing or determining an application relating to live text commentary;
(c) the court is hearing or determining an application relating to the handling of vulnerable witnesses;
(d) the court is hearing or determining an application relating to trial by jury; and
(e) the court is hearing or determining an application to register a right for deprivation of liberty.
(4) Where the court has excluded the public from all or part of the court under paragraph (3) (e) the court must exclude the public from all or part of the court while it hears or determines an application relating to the length of a period of deprivation of liberty.
(5) The court must exclude the public from court or a part of court where —
(a) the court is listed to hear or determine a cause or matter entirely in private; or
(b) the court otherwise determines that a particular person should not be present.
- (6) Where the court holds the whole or any part of the proceedings in private under paragraph (1) (d) or (5) then the court must make provisions for the hearing or determining of that part of the proceedings so far as is practicable in the circumstances of the case for the attendance of the media and the public using live text commentary.
- (7) The court must maintain the firewalls between protected material, reports of proceedings in private and reports of proceedings in public.
- (8) The court must ensure that a person having the benefit of anonymity in a cause or matter and any victim or witness of an offence shall not be readily identifiable by the publication of material or in other ways.
‘In Camera’ Sessions and Open Hearings
‘In camera’ (in Latin, "in a chamber") sessions differ from open court hearings in which members of the public are free to attend. Courts utilize in camera sessions in a variety of matters, in order to protect the identity of witnesses who would otherwise suffer embarrassment, intimidation or even coercion. Family law courts rely upon in camera proceedings in cases involving allegations of child custody, neglect, abuse or sexual assault. Confidential matters concerning a company’s trade secrets, financial information or personnel issues will also generally be heard in camera.
Important distinctions exist between in camera and open court hearings. First and foremost, the court and all parties involved are present when an in camera proceeding is held. The only individuals who are allowed to be present in the courtroom when an in camera session is held are the judges , relevant attorneys, witnesses (if applicable) and the client. In contrast, an open court hearing includes the same individuals in addition to the general public and the media at large. The presiding judge ultimately decides whether to hold a matter in camera and, if so, whether or not the hearing will be confidential.
As soon as the judge deems it appropriate to conduct an in camera session, he or she will instruct all present to either exit the courtroom or leave the area so that the hearing can commence. However, the presiding judge might choose to close the courtroom for some or all of the proceedings and then later re-open the courtroom in order to resume with the public portion of the hearing.
Impact of ‘In Camera’ Proceedings on Parties
In camera proceedings can have significant implications for the parties who are involved in them. For plaintiffs, one of the key potential benefits is that it allows them to have access to information that they would not otherwise be able to obtain through discovery. In some cases being subjected to an in camera inspection can be more harmful to the plaintiff than to the defendant. Plaintiffs in consumer fraud litigation have been known to sometimes seek an in camera inspection, rather than a withholding of documents by the defendant based on a claim of privilege since the former does not put the litigant in a position where the public disclosure of the records due to the granting of the motion to compel cannot be undone.
For defendants, however, in camera proceedings have the potential to place them at a distinct disadvantage. The hearing will usually take place before a judge who is experienced with protecting privileged information, and who has sole and private access to the materials. That, combined with the fact that the plaintiff will frequently be making its arguments, asking its questions and receiving answers about the subject documents without ever having access to the documents, can lead to a skewed perspective from which the judge can view the issue. Additionally, the lack of access for the defendant can mean less control over the various factors that may come into play when the judge makes a decision for the hearing.
Other persons and entities may become involved in in camera proceedings for a number of reasons. Motions brought by codiscovery defendants are one way, although they are rarely granted. The more common method is for business competitors and even foreign governments to request permission to intervene in proceedings where in camera proceedings are in place, usually in order to protect important trade secrets that could be revealed as a result of the proceedings. There is a growing body of jurisprudence in which courts have examined and rejected arguments from persons and entities outside of the plaintiff and the defendant that would prevent or limit the use of in camera proceedings.
Notable Cases with ‘In Camera’ Sessions
One of the biggest cases to make use of in camera sessions is the 2003 trial of Margaret and Thomas Dyer over the murder of their 2-year-old daughter Ebony. The story eventually garnered international attention when it became known in the UK as the "Baby Ebony case." Even those who don’t know the name recognize the details as one of Toronto’s most horrifying murders. The Dyer family was discovered unresponsive in their Toronto home. Margaret and Thomas had been drugged as well, but to a lesser extent than their daughter. The drugs were determined to be exposure to carbon monoxide gas, and the carbon monoxide was procured by the father to kill their dog. Margaret later admitted that she had also been sleeping at the time of the incident, and that a small portion of the drug interfered with her motor skills and language abilities. The couple pled not guilty for the murder of their child based on their continued claims to police that they had suffered some sort of psychotic episode at the time of the crime, and therefore were incapable of understanding the nature of their actions.
At trial, a psychiatric report on Margaret was ordered to be submitted to the judge in a pretrial session. In this report, the psychiatrist determined that the accused was not incapable at the time of the crime of understanding the act of taking her daughter’s life. As the report would provide the prosecution with key information to their case, they petitioned for further mental evaluation of both Margaret and Thomas in an in camera session. When the trial judge denied this request, the matter was taken to the Supreme Court of Canada. The court ruled that the presiding judge "had erred by failing to allow the prosecution to challenge the accused’s psychiatric report." Specifically, the Court held that it was important for both sides to fully prepare their arguments . Further, the Court ruled that to deny the prosecution the opportunity to depose the accused’s psychiatrist with their own expert witness would mean that they would not be able to "make full answer and defence to the accused’s assertions." The accused had "a strong incentive to spin a fanciful tale in order to invent a plausible explanation for their whereabouts at the time of the offence" and that this detailed account of their activities "was invariably different from standard expectations." It was this lack of insight into the state of mind of the accused that reinforced the need for additional psychiatric assessment in order to ensure that a fair trial could take place.
In a more recent special case, the Ontario Superior Court commented on the expansion of the use of in camera sessions. Following the stay of an action, the appellant sought leave to file its appeal. The respondent, on the other hand, sought to have the appellant’s notice of appeal sealed. Their argument was based on the actions of the appellant’s counsel, in which they had allegedly sought to contact members of the public regarding their involvement in the proceedings, along with other private electronic data. The appeal court commented that "Canada’s legal system has become more open and accessible to the public" and because of the need for this increased transparency "the protection of privacy and the due administration of justice must be balanced." The court held that records of the appeal would be kept private during the review process, but that there might be a need to return to the courts if the parties’ positions remained the same following judgment. The case exemplifies the changing attitudes towards issues such as privacy in the court system, and the importance of preserving the due process of law by making guaranteed that "all parties seeking relief from a ruling before a court or tribunal have a reasonable opportunity to present their position in an appropriate manner."