A.M. v. Toronto Police Service et al.

[Indexed as: M. (A.) v. Toronto Police Service]

Ontario Reports

Ontario Superior Court of Justice,

Divisional Court,

Nordheimer J.

September 14, 2015

127 O.R. (3d) 382 | 2015 ONSC 5684

Case Summary

Courts — Open court principle — Applicant required to give notice to media of motion for order permitting him to pursue application for judicial review using only his initials.

The applicant brought a motion for an order permitting him to pursue a judicial review application using only his initials. Notice of the motion was not given to the media.

Held, the motion should be adjourned.

Whenever a party seeks to restrict access to a court proceeding by requesting permission to use a pseudonym or initials, notice ought to be given to the media of that request unless the party obtains a court order dispensing with the notice requirement.

N. (J.) v. Durham (Regional Municipality) Police Service, [2012] O.J. No. 2809, 2012 ONCA 428, 262 C.R.R. (2d) 86, 294 O.A.C. 56, 284 C.C.C. (3d) 500, 101 W.C.B. (2d) 318, revg (2011), 106 O.R. (3d) 346, [2011] O.J. No. 2280, 2011 ONSC 2892, 272 C.C.C. (3d) 79, 236 C.R.R. (2d) 26, 96 W.C.B. (2d) 120 (S.C.J.), consd

Other case referred to

B. (A.) v. Stubbs (1999), 1999 14801 (ON SC), 44 O.R. (3d) 391, [1999] O.J. No. 2309, 175 D.L.R. (4th) 370, 97 O.T.C. 15, 36 C.P.C. (4th) 175, 89 A.C.W.S. (3d) 236 (S.C.J.); Canadian Broadcasting Corp. v. R. (2010), 102 O.R. (3d) 673, [2010] O.J. No. 4615, 2010 ONCA 726, 221 C.R.R. (2d) 242, 271 O.A.C. 7, 262 C.C.C. (3d) 455, 327 D.L.R. (4th) 470, 91 W.C.B. (2d) 175; [page383] Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, [1994] S.C.J. No. 104, 120 D.L.R. (4th) 12, 175 N.R. 1, J.E. 95-30, 76 O.A.C. 81, 94 C.C.C. (3d) 289, 34 C.R. (4th) 269, 25 C.R.R. (2d) 1, 51 A.C.W.S. (3d) 1045, 25 W.C.B. (2d) 304; Ottawa Citizen Group Inc. v. Canada (Attorney General) (2005), 2005 93777 (ON CA), 75 O.R. (3d) 590, [2005] O.J. No. 2209, 255 D.L.R. (4th) 149, 201 O.A.C. 208, 197 C.C.C. (3d) 514, 31 C.R. (6th) 144, 131 C.R.R. (2d) 332, 66 W.C.B. (2d) 580 (C.A.); Q. (P.) v. Bederman, [1998] O.J. No. 4009, 77 O.T.C. 202, 31 C.P.C. (4th) 313, 83 A.C.W.S. (3d) 102 (Gen. Div.); T. (S.) v. Stubbs (1998), 1998 14676 (ON SC), 38 O.R. (3d) 788, [1998] O.J. No. 1294, 158 D.L.R. (4th) 555, 56 O.T.C. 110, 24 C.P.C. (4th) 144, 78 A.C.W.S. (3d) 481 (Gen. Div.); Toronto Star Newspapers Ltd. v. Ontario, [2005] 2 S.C.R. 188, [2005] S.C.J. No. 41, 2005 SCC 41, 253 D.L.R. (4th) 577, 335 N.R. 201, J.E. 2005-1234, 200 O.A.C. 348, 197 C.C.C. (3d) 1, 29 C.R. (6th) 251, 132 C.R.R. (2d) 178, 65 W.C.B. (2d) 621; Vancouver Sun (Re), [2004] 2 S.C.R. 332, [2004] S.C.J. No. 41, 2004 SCC 43, 240 D.L.R. (4th) 147, 322 N.R. 161, [2005] 2 W.W.R. 671, 199 B.C.A.C. 1, 33 B.C.L.R. (4th) 261, 184 C.C.C. (3d) 515, 21 C.R. (6th) 142, 120 C.R.R. (2d) 203, 61 W.C.B. (2d) 216

Rules and regulations referred to

Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7, rule 4.02(2)

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 14.06

MOTION for an order permitting the applicant to pursue a judicial review application using only his initials.

R. Love, for applicant.

G. Glickman, for respondent chief of police, Toronto Police Service.

F. Fischer, for respondent Toronto Police Services Board.

[1] NORDHEIMER J.: — Within his application for judicial review, the applicant brings this motion by which he seeks an order permitting him to pursue the application using only his initials. When the motion first came before me, I asked counsel for the applicant whether notice of this motion had been given to the media. It had not. I expressed the view that notice ought to have been given. Counsel for the applicant asked for time to consider his position and the matter was adjourned for that purpose.

[2] On the return of the motion, the applicant submitted that notice to the media was not required but that, if I concluded otherwise, some directions should be given as to whom the notice had to be given. The Toronto Police Services Board took no position on the issue. The chief of police took the position that notice ought to be given to the media.

[3] I ruled that notice had to be given to the media and I directed which media organizations, as representatives of the media as a whole, should receive that notice. I also granted a temporary publication ban on the identity of the applicant so that the relief sought in the motion would not be rendered moot. I said I would give reasons for my decision and I now do so. [page384]

[4] It is a fundamental principle of our court system that its proceedings, in all of their various facets, are open to the public. This is a principle that has been stated and re-stated by the Supreme Court of Canada. It was clearly enunciated in Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, [1994] S.C.J. No. 104, where the forerunner to the ultimate Dagenais/Mentuck test for the granting of publication bans was set out. On the subject of notice to the media, it was stated in Dagenais that, where a common law publication ban was being sought, the judge "should give the media standing (if sought)" (p. 890 S.C.R.). Obviously, the media cannot seek standing if they do not have notice of the matter.

[5] That said, I recognize that the decision on whether to give notice to the media appears to be a discretionary one. There is no absolute rule that the media must be informed of a motion seeking a publication ban. As Lamer C.J.C. said in Dagenais, at p. 869 S.C.R.:

The judge hearing the application thus has the discretion to direct that third parties (e.g., the media) be given notice. Exactly who is to be given notice and how notice is to be given should remain in the discretion of the judge to be exercised in accordance with the provincial rules of criminal procedure and the relevant case law.

[6] Even though that discretion exists, there is, in my view, a presumption that the media will be given notice of any motion where relief is sought that will have the effect of restricting the public's, and thus the media's, right to access court proceedings. That presumption flows from a combination of the open court principle and the salient fact that the media is the mechanism by which members of the public are informed of the activities that take place in the courts. In that regard, I repeat the observation made in Ottawa Citizen Group Inc. v. Canada (Attorney General) (2005), 2005 93777 (ON CA), 75 O.R. (3d) 590, [2005] O.J. No. 2209 (C.A.), where MacPherson J.A. said, at para. 65:

Because of the centrality of a free press and open courts in Canadian society and in the Canadian constitution, there is almost a presumption against any form of secrecy in all aspects of court proceedings in Canada.

[7] The importance of the openness principle, and the role that the media plays in its effectiveness, were canvassed at some length in Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, [2004] S.C.J. No. 41. In terms of the open court principle, Iacobucci and Arbour JJ. said, at para. 23:

This Court has emphasized on many occasions that the "open court principle" is a hallmark of a democratic society and applies to all judicial proceedings[.]

(Citations omitted) [page385]

[8] In terms of the role of the media in promoting the openness principle, Iacobucci and Arbour JJ. said, at para. 26:

The freedom of the press to report on judicial proceedings is a core value. Equally, the right of the public to receive information is also protected by the constitutional guarantee of freedom of expression: . . . . The press plays a vital role in being the conduit through which the public receives that information regarding the operation of public institutions: . . . Consequently, the open court principle, to put it mildly, is not to be lightly interfered with.

(Emphasis added; citations omitted)

[9] The decision in Vancouver Sun (Re) makes it clear that the openness principle applies to both trial and pre-trial proceedings (para. 27). The decision likewise makes it clear that the openness principle, and the Dagenais/Mentuck test for interfering with that principle, apply not just to applications for publication bans, but to applications that involve a request for any form of restriction on the right of the media to report on any aspect of a court proceeding. Quoting again from Iacobucci and Arbour JJ., at para. 31:

While the test was developed in the context of publication bans, it is equally applicable to all discretionary actions by a trial judge to limit freedom of expression by the press during judicial proceedings.

[10] Finally, it is clear from the decision in Vancouver Sun (Re) that when it comes to the procedure for considering any restriction on the right to report on court proceedings and to have access to those proceedings, there is no distinction to be drawn between criminal and civil proceedings. They are all subject to the same openness principle, and the same process regarding any effort to curtail access, subject, of course, to any statutory limitations or directives that may exist.

[11] The conclusions reached in Vancouver Sun (Re) were reinforced by the Supreme Court of Canada in Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188, [2005] S.C.J. No. 41. In particular, Fish J. said, at para. 4:

It is now well established that court proceedings are presumptively "open" in Canada. Public access will be barred only when the appropriate court, in the exercise of its discretion, concludes that disclosure would subvert the ends of justice or unduly impair its proper administration.

(Original emphasis)

[12] Those conclusions were repeated by the Court of Appeal in Canadian Broadcasting Corp. v. R. (2010), 2010 ONCA 726, 102 O.R. (3d) 673, [2010] O.J. No. 4615 (C.A.), where Sharpe J.A. made the following point, at para. 24:

The open court principle and the rights conferred by s. 2(b) of the Charter embrace not only the media's right to publish or broadcast information [page386] about court proceedings, but also the media's right to gather that information, and the rights of listeners to receive the information.

[13] This case is not the first time that issues have arisen regarding whether the media ought to have received notice of a motion seeking the right to pursue a claim through a pseudonym or by the use of initials. The need to provide notice to the media has been referred to for many years. For example, in T. (S.) v. Stubbs (1998), 1998 14676 (ON SC), 38 O.R. (3d) 788, [1998] O.J. No. 1294 (Gen. Div.), Epstein J., at para. 2, said:

I note that while the media may have an interest in making submissions with respect to the relief sought, no one representing the media was served with notice of this motion.

At the conclusion of her reasons in that matter, Epstein J. specifically provided that a term of her order was that any member of the media could seek to re-open the matter if they wished to make submissions on the issue.

[14] Similarly, in Q. (P.) v. Bederman, [1998] O.J. No. 4009, 77 O.T.C. 202 (Gen. Div.), Juriansz J., while granting interim relief, ordered that the media be given notice of the return of the motion.

[15] I appreciate that there are also decisions that deal with this issue where it does not appear that the media were given notice of the matter. In particular, the applicant refers to the decision in N. (J.) v. Durham Regional Police Service (2011), 2011 ONSC 2892, 106 O.R. (3d) 346, [2011] O.J. No. 2280 (S.C.J.), revd [2012] O.J. No. 2809, 2012 ONCA 428. It does not appear that the media were given any notice regarding the request in that case. The mere fact that the media were not given notice in a given case does not constitute that case as authority for the proposition that the media are not entitled to notice. As I have attempted to point out above, the guiding principles enunciated by the Supreme Court of Canada do not allow for any doubt that the media is entitled to notice, in the normal instance, of any motion by which the openness of the court process is sought to be restricted. I would also note that in N. (J.), the Court of Appeal allowed the appeal and set aside the order below on a jurisdictional ground. Given that result, the Court of Appeal may well have thought that it was unnecessary to deal with the failure to give notice to the media.

[16] To summarize, whenever a party is seeking to restrict access to a court proceeding, whether by way of seeking permission to use a pseudonym or initials, notice ought to be given to the media of that request. The mere fact that notice is given does not mean, of course, that the media will attend and wish to make submissions. They will choose the cases in which they are interested and the ones in which they are not. Further, the mere fact [page387] that notice is given and the media attends does not mean that the relief will be denied. Equally, the mere fact that the media does not attend does not mean that the relief should be granted. Each case will turn on its particular facts. There will be cases (perhaps arguably like the one here) where the issue is a matter of public interest but the identity of the person seeking relief is not. In another case, both the issue and the person seeking anonymity may be of public interest. Put simply, the discretion called for in deciding whether to give notice to the media engages very different considerations than does the discretion that is called upon when deciding whether the restriction should be granted.

[17] Consequently, absent a court order dispensing with the requirement to give notice, notice ought to be given to the media of any application or motion for such relief. Put more simply, the default position is that notice is to be given. I appreciate the practical problems that that requirement can pose for the party bringing the application in terms of to whom to give notice. This problem has been mentioned for many, many years by various courts and has yet to be formally addressed in any fashion. For example, I note that in B. (A.) v. Stubbs (1999), 1999 14801 (ON SC), 44 O.R. (3d) 391, [1999] O.J. No. 2309 (S.C.J.), Cumming J. said, at para. 9:

However, there is an absence of rules in place as to whom specifically to notify in an instance such as this. To whom in the press and media does the moving party give notice? As an aside, I state that it would be purposeful to have established rules in place in advance of a motion such as the one at hand.

[18] Notwithstanding that observation from many years past, this court still has no established process by which parties can give notice to the media about such requests. I contrast this with, for example, the situation in the Province of Nova Scotia where the courts of Nova Scotia maintain a free e-mail subscription service to advise the media of applications made to the courts for publication bans and other similar court orders. The courts in that province provide subscribers with an e-mail message advising that an application has been made and when and where it will be heard. The courts in Newfoundland and Labrador and in British Columbia have similar procedures.

[19] Unfortunately, until that gap in the process is filled, parties will have to decide on their own what a fair representative sample of the media is for the purpose of giving notice. Alternatively, the party can seek directions from the court but that, of course, involves additional expense for the party. As I noted earlier, I have specified which media organizations should be given notice in this case. [page388]

[20] There is one other point that I will make regarding the process by which such motions are brought. It appears that the tendency in these situations is for the material to be filed with the court, naming the party by just using their initials. That procedure is not authorized by any of this court's rules. For example, rule 14.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 requires every originating process to contain a title of the proceeding that sets out "the names of all the parties".[^1] Commencing the proceeding with initials presumes permission that has yet to be granted. The proper procedure is for the application to be brought in the full name of the party but it may be coupled with a request for a temporary publication ban on the party's name until the motion can be heard and determined. No media organization would, I trust, publish the name of a party where the material reveals that a temporary publication ban was being sought. That procedure would not only have the benefit of complying with the court's rules but it would also provide the media with a very important piece of information, that is, the name of the party seeking the restriction. As I mentioned earlier, the identity of the party may be critical to the media's view regarding the appropriateness of the relief sought.

[21] It is for these reasons that I adjourned the motion and directed the applicant to give notice to the media of it.

Motion adjourned.

Notes

[^1]: See, also, the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7, rule 4.02(2).

End of Document