DIVISIONAL COURT FILE NO.: 126/15
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: A.M., Applicant
AND:
Toronto Police Service and Toronto Police Services Board, Respondents
BEFORE: Thorburn J.
COUNSEL: Roger Love, for the Applicant/Moving Party
Fred Fischer, for the Respondent, Toronto Police Services Board
No one appearing for the Respondent, Toronto Police Service (as per their letter indicating they were taking no position and did not intend to appear)
HEARD: January 27, 2016
ENDORSEMENT
Request for Relief
1The Applicant, A.M., has brought an application for judicial review in response to the Toronto Police Services Board’s decision to deny his request to suppress or purge a “person of interest” record from his Police Vulnerable Sector Check dated October 31, 2012 and reasons for that decision dated October 15, 2012.
2Within his application for judicial review, the Applicant seeks injunctive relief on this motion in the form of an order,
a. amending the title of proceedings by deleting the name of the Applicant and substituting the initials A.M. in the title of proceedings, the pleadings and all court documents; and
b. directing the Respondents to redact the Record of Proceedings by using the Applicant’s initials instead of his full name and removing any information and using initials to identify any relative of A.M. that may be mentioned in the court record.
3The Respondent, Toronto Police Service, takes no position and did not attend the hearing. The Respondent, Toronto Police Services Board, filed no materials but attended the hearing. It took no position on the application save to request a clear order outlining what the Toronto Police Services Board was to do if anything.
Background Facts
4The Applicant is a 53-year old man with a 21-year old son. He has volunteered as a youth coach mentor and coach of sports teams since 1980. During that time he acquired a number of positive reviews. In 1999 he applied to be a full-time Safety Monitor and Head Coach of a basketball team at West Hill Collegiate Institute. In 2000 an allegation of sexual exploitation was made against him by a female high school student.
5The Applicant was questioned about the event by police on January 9, 2001. At the end of the interview the Applicant was advised by police that the allegation could not be substantiated and that no further action would be taken. The Applicant was never charged with any offence.
6The police notified the Toronto District School Board of the sexual exploitation allegation and that the Applicant had a criminal record for offences none of which were sexual offences.
7As a result of the criminal convictions, he was fired from his position at West Hill Collegiate Institute.
8In December 2008, the Applicant received a pardon for his criminal convictions (all of which pre-date 2001) and applied for re-employment with the TDSB. However, his Police Vulnerable Sector Check stated that he was a “person of interest” regarding a sexual exploitation incident in November 2000 and he therefore was not engaged by the TDSB.
9The Applicant has made several unsuccessful attempts to clear his name.
10Then Police Chief, Bill Blair, was asked to purge the person of interest record from his Police Vulnerable Sector Check but refused to clear his record. The complaint was referred to the Office of the Independent Review Director and reviewed by the Toronto Police Services Board which concurred with the decision of the Police Chief. The Applicant seeks judicial review of that decision and an order to proceed with his application for judicial review anonymously so as to protect his privacy interests.
11This application was first brought in August of 2015 at which time the request was refused by the Court because the Applicant had failed to notify the media of this application and the relief sought thereunder. The Applicant was ordered by Nordheimer J. to give notice to a fair representative sample of the media.
12In his reasons, Nordheimer J. articulated the reason for notifying the media and the important role played by the media in being the conduit through which the public receives information regarding the operation of public institutions including the courts. He noted that the media outlets were to be notified so that any member of the media could seek to contest the request for anonymity.
13By letter dated January 20, 2016, the Applicant’s counsel advised that the following media outlets were advised of this request and he provided affidavits of service in support thereof:
a. CBC
b. Bell Media- CTV
c. Rogers Communications- City TV
d. Shaw Communications- Global TV
e. Toronto Star Corporation
f. Globe and Mail
g. National Post
h. Toronto Sun
14Although each of the media outlets was properly served, none has indicated an interest in obtaining standing or in making submissions regarding this request.
Legal Analysis and Conclusion
15Rule 14.06 of the Rules of Civil Procedure provides that the title of a proceeding must name the parties but Rule 2.03 provides that a court may dispense with rules where it is necessary and in the interests of justice to do so. Section 137(2) of the Courts of Justice Act provides that a Court may order that a document filed in a civil proceeding be treated as confidential and not form part of the public record.
16On his motion for injunctive relief, the Applicant seeks to identify himself in the title of proceedings and in the pleadings by initial rather than by name, redact the Record of Proceedings by using the Applicant’s initials instead of his full name, and remove any information and use initials to identify any relative of A.M. that may be mentioned in the court record.
17In order to succeed, the Applicant must establish that there is a serious issue to be tried, there is a likelihood that he will suffer irreparable harm, and the balance of convenience favours granting the order requested.
18I am satisfied that there is a serious issue to be decided.
19The issue of the use of non-conviction police records has not been fully addressed by the Courts. Civil liberties groups have brought attention to the matter and the issue of how to deal with non-conviction police records has garnered interest on the part of the press. Legislators have indicated their intention to standardize the process for conducting record checks.
20This judicial review application may settle some important questions regarding the use of Police Vulnerable Sector Checks where the person in question was never charged with an offence.
21Secondly, given that there is a serious issue to decide, the court must consider whether the Applicant is likely to suffer irreparable harm.
22The Applicant claims that once a prospective employer learns of a person’s non-conviction record, the employer has the discretion not to hire the person. He claims that one prospective employer has already decided not to hire him for this reason.
23Public attention to this lawsuit and/or wide distribution of this unproven allegation will enable more employers and prospective employers to know his situation than if the record remained in his file. It may also discourage him and others from seeking judicial review. Most importantly, it will defeat the whole purpose of his application for Judicial Review as the very issue he is contesting is the dissemination of personal information about him that involved no criminal charges.
24I am therefore satisfied that there is a likelihood of irreparable harm should the Applicant’s full name be disclosed in these proceedings.
25Lastly, the court must be satisfied that the balance of convenience favours granting the order.
26Public interest is a factor to be considered. (R.J.R. MacDonald Inc. v. Canada (Attorney General) 1994 117 (SCC), [1994] 1 S.C.R. 311 at p. 344).
27The Applicant in this case is a person in whom the public has no particular public interest.
28If the Applicant’s request is granted, he will be able to pursue his request for judicial review and have the facts regarding this situation and the public interest issue it entails available publicly for discussion. The file itself will remain public and there will be no publication ban on the proceeding itself, save for information that pertains to the Applicant. Use of the Applicant’s initials reflects the fact that he was never charged with a crime and that his privacy interests warrant protection. This is particularly true where the reason for bringing the application for judicial review is to excise the very information from police files that would be made public in the course of commencing legal proceedings.
29I note that although a representative sample of media corporations have been notified of this proceeding, none has indicated any interest in attending to obtain standing or to make submissions.
30For these reasons, I am satisfied that there is a serious issue to be tried, there is a likelihood that the Applicant will suffer irreparable harm if his name is disclosed in this application for Judicial Review and the balance of convenience favours permitting the Applicant to bring this application without fear of reprisal or adverse repercussions while ensuring that the public has available to it relevant information about the issue of public importance.
31Finally, I must balance the important Charter right of freedom of expression and the important legal interest in an open court process with the right of an individual to protect his/her privacy. In A.B. v. Bragg Communications Inc., 2012 SCC 46 at para. 10, the Court held that the legal interest in an open court process should be impaired as little as possible. In so doing, the court should consider whether there are alternative measures that will preserve the Applicant’s privacy rights.
32In this case, the Applicant’s request to amend the title of proceedings by deleting the name and substituting his initials, and directing the Respondents to redact the Record of Proceedings to use the Applicant’s initials instead of his full name is granted.
33This request provides an appropriate balance between the desires for an open court process, and protection of the Applicant’s privacy interest, where the information in the court file includes only his initials. This will ensure that the Applicant and those like him are not inhibited from raising these issues of public importance in a public forum, while maintaining an open court process where no documents are sealed. While I appreciate that there may always be some public interest in a name, that interest is outweighed in this case by the strong interest in protection of privacy and promoting access to justice.
34However, I do not grant the further request to remove any information and use of initials to identify any relative of A.M. that may be mentioned in the court record. I note that there has been no interest on the part of the media in this proceeding thus far. On the evidence before me, I am not satisfied that it is necessary given the level of interest. Moreover, I have been provided no information about the individuals in question or the difficulty in redacting that information. Consequently, I am unable to conclude that it impairs freedom of expression as little as possible.
35For these reasons, the Application is granted to:
a. amend the title of proceedings by deleting the name of the Applicant and substitute his initials in the title of proceedings, and remove any identifying information about him in the pleadings and all court documents; and
b. direct the Respondents to redact the Record of Proceedings by using the Applicant’s initials instead of his full name and remove any identifying information about him.
36The Application to remove any information and use initials to identify any relative of A.M. that may be mentioned in the court record is denied.
37At the request of all parties in attendance, there is no order as to costs.
Thorburn J.
Date: January 27, 2016