Court File and Parties
COURT FILE NO.: FS-18-2842-00 DATE: 20190628 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: A.P. Appellant/Respondent on Motion AND: L.K. Respondent/Moving Party on Motion
BEFORE: J.T. Akbarali J.
COUNSEL: Joanna Harris, for the Appellant/Responding Party Andrew Faith and Emma Carver for the Respondent/Moving Party Tae Mee Park and Emma Romano for the Non-Parties, CTV News, a Division of Bell Media Inc., The Globe and Mail Inc., the Canadian Broadcasting Corporation and Postmedia Network Inc.
HEARD: June 25, 2019
PUBLICATION BAN: A non-publication order in this proceeding has been issued pursuant to the common law powers of a judge by the Superior Court of Justice and the considerations outlined by the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, prohibiting the publication of: a) any evidence or information that may identify the children, including their names, dates of birth, address(es), school(s), genders, images, or voices, but not including their ages or initials; b) any evidence or information about the children’s health except for the fact that they are unvaccinated; c) any evidence or information that may identify the parties, including their names, voices, and images, but not including their genders or initials.
Endorsement
Overview
[1] This motion arises in the context of an appeal from an arbitrator’s decision not to order that the parties’ children be vaccinated. In this motion, the children’s mother, who is the respondent on the appeal, asks me to initialize the file, order a publication ban, and seal the court file to shield the identity of the children in order to protect them from harm. For the most part, the appellant father supports these requests. Four media outlets jointly resist the orders sought, but do not oppose certain, more limited, orders to protect the children. My task is to determine what, if any, limits on the public’s access to information about this proceeding are warranted to protect the children’s interests.
Background
[2] The father appeals from a decision of an arbitrator dated April 11, 2018. In that decision, the arbitrator determined that it would not be in the best interests of the parties’ two children to be vaccinated. The arbitrator subsequently released a costs award on March 18, 2019.
[3] The father served a Notice of Appeal from the arbitrator’s main award on May 11, 2018. The appeal did not proceed expeditiously.
[4] At some point the father reached out to media outlets to publicize the arbitrator’s decision. The mother argues he did so in breach of the arbitration agreement. The father disputes the validity of the arbitration agreement. For the purposes of this motion, it does not matter whether the father’s outreach to media was in breach of a valid arbitration agreement. What is undisputed is that media took an interest in the arbitration decision.
[5] A number of media articles reported on the arbitration decision. Some of these reports included the image, voice and video of the father. The father’s full name is used in many, if not all, of the reports that are currently available online. The mother and the children are not identified by name in the existing media reports, although some reports identify the children’s ages and genders.
[6] In addition to the media articles, the record reveals that there is online content available about the arbitration decision on Reddit, and other forums that do not appear to be mainstream media outlets. Some, if not all, of this content includes the father’s full name.
[7] The father has created a gofundme.com page to raise funds to finance his appeal. The record discloses that the gofundme.com page uses the father’s first name only, and no images of him or the children. On it, he raises questions about the substance of the arbitrator’s decision, asking “How could this judge [sic] go against a public health crisis?” He asks when Canada will make vaccinations strictly necessary. He hints at injustices in the arbitration process. The material in the court file makes clear those alleged injustices will form part of the appeal on the merits. The material filed on the motion demonstrates that at least 375 people have contributed and over $14,000 has been raised for the father’s proceeding through his gofundme.com page.
[8] The father brought a motion before me on April 30, 2019 for an extension of time to perfect the appeal. I adjourned that motion for a month to allow the respondent mother time to retain new counsel and prepare for the motion.
[9] That motion was returned before Kristjanson J. on May 30, 2019. At that time, the parties entered into a consent order and timetable to perfect the appeal. The mother also sought a publication ban. In an endorsement dated May 30, 2019, Kristjanson J. directed the mother to provide a Notice to the Media in accordance with the Consolidated Provincial Practice Direction of the Ontario Superior Court of Justice: 2019 ONSC 3333. She ordered an interim publication ban on the following terms:
a. This decision, motion and documents filed on the motion shall refer to the parties and their children by initials; b. There is a publication ban with respect to information identifying the parties or their children; c. Anyone who has previously had access to the court file is prohibited from communicating information that may identify the parties or their children; d. The Respondent wife is directed to notify the media in the manner prescribed by the Consolidated Provincial Practice Direction of the Ontario Superior Court of Justice, using the names of the parties; and e. The interim publication ban made [by Kristjanson J.] respecting all proceedings in this matter presently before this court will continue, subject to any further order of this court, until June 25th, at which time the continuation of the interim publication ban will be addressed on the motion.
[10] The return of the motion for the publication ban came before me. These reasons address the mother’s request for a continued, and expanded, publication ban, for initialization of the file, and for a sealing order. As I have noted, the father, for the most part, supports the relief the mother seeks.
[11] The mother has given notice to the media as directed by Kristjanson J. Four media outlets have jointly retained counsel who appeared on the motion to resist the relief sought by the mother. No other media outlets appeared on the motion.
Relief sought
[12] The mother seeks orders on this motion as follows:
a. That the court file be sealed, and a public copy filed from which information tending to identify the children or their parents is redacted. The mother proposes certain mechanisms to ensure the media can challenge the redactions made by the parties; b. That the title of proceedings shall use initials to identify the parties; c. That any decisions, orders or other documents made public in this proceeding shall refer to the parties and their children solely by their initials; d. That there shall be a publication ban with respect to any identifying information relating to the parties or their children; e. That any person who has gained access to the court file is prohibited from communicating to any other person the identity of the parties or the children, or any information that has the effect of or could have the effect of identifying the parties or their children.
[13] I am thus being asked to limit the public’s access to the documents in, and information about, this proceeding. I turn to the framework the court must apply when considering when to limit public access to the court, and consider how it applies in this case.
Analysis
[14] The right of public access to the courts is referred to as the open court principle. It has been described as a “cornerstone of the common law”, and a “hallmark of a democratic society”. In Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 at p. 1336, Cory J. described its importance this way:
A democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions. The concept of free and uninhibited speech permeates all truly democratic societies and institutions. The vital importance of the concept cannot be over-emphasized.
[15] But it is not enough that our courts be open. In practice, most members of the public cannot attend court proceedings, or cannot attend them regularly. The public relies on the press to learn about what is happening in court proceedings, about the administration of justice, and about the court as an institution. In Edmonton Journal, at p. 1340, Cory J. recognized the fundamental importance the role of the press plays in promoting and protecting the open court principle:
It is only through the press that most individuals can really learn of what is transpiring in the courts. They as “listeners” or readers have a right to receive this information. Only then can they make an assessment of the institution. Discussion of court cases and constructive criticism of court proceedings is dependent upon the receipt by the public of information as to what transpired in court. Practically speaking, this information can only be obtained from the newspapers or other media.
[16] The critical role of the press is recognized by the importance placed on the right to free expression. The open court principle is “inextricably linked” to freedom of expression: Re Vancouver Sun, [2004] 2 S.C.R. 332, at para. 26. In Edmonton Journal, the Court stated, at p. 1336, that “it is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression”.
[17] Freedom of expression is now enshrined in s. 2(b) of the Canadian Charter of Rights and Freedoms but it has been protected and valued since long before the Charter came into existence. In R.W.D.S.U. v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573 at p. 583, McIntyre J. described freedom of expression as “one of the fundamental concepts that has formed the basis for the historical development of the political, social and educational institutions of western society.”
[18] In Re Vancouver Sun, the freedom of the press to report on judicial proceedings was described as “a core value”, and the right of the public to receive information was found to be protected by the constitutional guarantee of freedom of expression: at para. 26.
[19] When the Court decided Edmonton Journal, in 1989, and even in 2004 and 2005 when it decided Re Vancouver Sun and Toronto Star Newspapers Ltd. v. Ontario, [2005] 2 S.C.R. 188, it was not grappling with the online age in which we now live. Traditional media remains, but now maintains a significant online presence. New media has emerged. Many people obtain their news from their social media feeds, where there are dangers of isolating oneself in an echo chamber, in particular on issues of difficult or polarizing public policy. Regularly, we hear charges of “fake news”, and see technological changes that make faking news easier than ever.
[20] In addition, at a time when politicians are available on Twitter, or online Facebook chats, judges speak almost exclusively through their decisions. There is comparatively less information about the court as a branch of government that is easily accessible to the public.
[21] The need for the courts to be open and accessible is, if anything, heightened by the current challenges in accessing accurate and complete information.
[22] The administration of justice serves the public, and the public has an interest in understanding what takes place in its courts. Any order that limits public access to the courts, including through media reports on court proceedings, runs counter to the goal of keeping the public informed. An informed public is necessary if the public is to be able to have full, open and accurate discussion about the administration of justice and the important issues that are raised in proceedings unfolding before Canadian courts.
[23] Yet there are times when some restriction on the open court principle and the right of the media to report on court proceedings are warranted. When a party seeks to limit public access to a court proceeding, or information about a court proceeding, the court must carefully consider the countervailing interests – that of the public in the open court principle, and the interest identified by the party who is seeking the restriction.
[24] To weigh the competing interests, the court applies what is commonly referred to as the Dagenais/Mentuck test:
discretionary action to limit freedom of expression in relation to judicial proceedings encompasses a broad variety of interests and that a publication ban should only be ordered when:
(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and (b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice: see, for example, Toronto Star Newspapers Ltd., at para. 26.
[25] With respect to the first branch of the Dagenais/Mentuck test, the Supreme Court of Canada has found that that the risk at issue must be “real, substantial and well-grounded in the evidence: ‘it is a serious danger sought to be avoided that is required, not a substantial benefit or advantage to the administration of justice sought to be obtained’”: Toronto Star Newspapers, supra, at para. 27.
[26] Where a party seeks to derogate from the open court principle in a family law proceeding, the Dagenais/Mentuck test applies. As Harvison-Young J. (as she then was) put it in L.C.F. v. G.F., 2016 ONSC 6732, 86 R.F.L. (7th) 338, “There can be no doubt then that any discretion within the family law context must be exercised within the constraints of the Dagenais/Mentuck test”: at paras. 16-17.
[27] I turn now to the application of the Dagenais/Mentuck test in the context of the orders sought in this motion.
What is the serious risk to the children?
[28] The mother argues that some limits on the open court principle and the media’s right to publish information about these proceedings are required to protect the privacy interests of the children. She argues that the potential harm to the children from their identities becoming public is a serious risk that satisfies the first branch of the Dagenais/Mentuck test.
[29] Canadian laws and jurisprudence recognize the vulnerability of children, and the risk they may face if information about court proceedings of which they are the focus is published. In family proceedings, s. 70 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 sometimes has application. Section 70(1) and (2) provide:
Confidentiality
70 (1) Where a proceeding includes an application under this Part, the court shall consider whether it is appropriate to order,
(a) that access to all or part of the court file be limited to, (i) the court and authorized court employees, (ii) the parties and their counsel, (iii) counsel, if any, representing the child who is the subject of the application, and (iv) any other person that the court may specify; or (b) that no person shall publish or make public information that has the effect of identifying any person referred to in any document relating to the application that appears in the court file. .
Considerations
(2) In determining whether to make an order under subsection (1), the court shall consider,
(a) the nature and sensitivity of the information contained in the documents relating to the application under this Part that appear in the court file; and (b) whether not making the order could cause physical, mental or emotional harm to any person referred to in those documents.
[30] For s. 70 CLRA to apply, there must be an application under Part III of the Act. Section 70 thus applies to applications for custody, access and guardianship under the CLRA; it is not directly applicable to the motion before me.
[31] However, I take note of Myers J.’s discussion of s. 70 CLRA in the context of a motion for a publication ban in Danso v. Bartley, 2018 ONSC 4929, 13 R.F.L. (8th) 341, at para. 34:
However, s. 70 provides an important context for applying the constitutional balancing. That is, the legislation shows a heightened awareness and sensitivity to the risks of harm in cases involving children. In balancing the risks of harm of publicity against the possible negative effects of a publication ban, the court should put extra emphasis on the public interest in protecting children and scrutinize closely claims that there is a real public interest in publication of the details of such claims.
[32] Section 70 is thus a legislative indication of the importance of protecting children against the risks of harm that may result to them as a result of cases that focus on them.
[33] There are other examples. Under s. 110(1) of the Youth Criminal Justice Act, S.C. 2002, c. 1, except when certain exceptions apply, “no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act”. The YCJA adopts a broad definition of “publication” to include, “making [information] known” or “making [information] accessible” that would identify a young person dealt with under that Act. Thus, publication bans under the YCJA intentionally cast a wide net, because they extend not just to an original publication but also to making information accessible.
[34] These legislative recognitions of the importance of protecting children in proceedings in which they are the focus also find expression in the case law. In L.C.F., Harvison-Young J. (as she then was) discussed the application of the Dagenais/Mentuck analysis with respect to children, and found that the privacy interests of children can be sufficient to justify limitations to the open court principle: at para. 47. In Danso, at para. 52, Myers J. noted the “obvious and important public interest in protecting vulnerable children from suffering trauma caused by their parents’ legal proceedings.”
[35] Consistent with the case law, the media parties argued that the first branch of the Dagenais/Mentuck test can be satisfied by demonstrating a serious danger or risk to the children’s interests.
[36] In my view, permitting limits to the open court principle when necessary to protect the interests of children recognizes that children who are the focus of family law proceedings do not choose to be involved in those proceedings and, for the most part, have no ability nor agency to protect their own interests. Moreover, children are a particularly vulnerable group; their vulnerability may put them at greater risk of harm if their interests are not adequately protected.
[37] In applying the Dagenais/Mentuck test to determine whether identifying information with respect to the children ought to be banned from publication, I have no difficulty concluding that there is a serious risk to the children if their identifying information is made public. They are unvaccinated children whose vaccination status is the focus of these proceedings. There is no dispute that vaccine hesitancy is a matter of public interest and, for some, great emotion. The public comments and discussion around this case reveal strong opinions. In some cases, they raise questions about the extent to which unvaccinated people should be entitled to participate in broader society. The mother’s evidence is that she is concerned the children will be stigmatized in their community as a result of their unvaccinated status. While there is no evidence of such stigmatization to date, we should not have to wait for damage to be done to guard against it, especially where the interests of children are concerned.
[38] The mother’s evidence also discloses that the children are experiencing stress as a result of these proceedings, and in particular, the media attention. I accept that public attention around the children’s vaccination status may be distressing for them. Given their ages, and, as a result, their level of maturity, they may not have the skills to cope or to cope well with that distress.
[39] Having concluded that there is a serious risk to the children, I turn to consider the specific orders sought by the mother, in the context of the Dagenais/Mentuck test.
Should the court ban publication of information that may identify the children?
[40] The mother argues that the court should ban publication of information identifying the children including their names, address, school, gender and ages. The father supports this request. The media parties do not oppose an order banning publication of the children’s names, address, or school, but do not accept that banning publication of the children’s ages or genders is necessary or minimally intrusive.
[41] In my view, a publication ban will have salutary effects, in that it will protect the children’s identity and thus minimize or mitigate the harm to which the public attention in this proceeding would otherwise cause. I see no reasonably alternative measures that will prevent the risk, and no one has suggested any.
[42] At the same time, the salutary effects of a tailored publication ban will outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression and the public interest in open discourse over the important issues raised in the context of this proceeding. These issues include vaccine hesitancy, but also the public’s interest in the family law arbitration process, questions about which are also engaged in the father’s appeal. In my view, the public interest in having access to the necessary information to discuss the issues of public importance raised by this case does not require that the public have information about the identity of the children. A tailored publication ban that limits the information available about the children while allowing for open discussion about the important issues raised in this case strikes an appropriate balance between the interests of the children and the interests of the public in open courts.
[43] I thus order that there shall be a publication ban prohibiting publication of any information that identifies the children, including their names, dates of birth, address, school(s), images or voices. The children may be referred to by their initials only.
[44] The media parties sought an order that they be allowed to refer to the children’s ages and genders. In my view, the salutary effects of prohibiting publication of the children’s genders outweighs the deleterious effects of such a ban. The children’s genders are not relevant to the issues that engage the public interest. All disclosing the children’s genders can do, especially in view of the information that is already in the public domain, which I discuss in greater detail below, is make it more likely the children will be identified. Accordingly, I extend the publication ban to the children’s genders.
[45] However, I do not extend the publication ban to the children’s ages. The children’s ages may be relevant to the public interest in the issues raised in this proceeding. For instance, their ages may affect which vaccines they would have been scheduled to receive, but did not receive. Their ages may affect the children’s own ability to participate in the decision whether to receive vaccinations. In my view, the deleterious effects of banning publication of the children’s ages are not outweighed by the salutary effects of such a ban.
[46] There is another issue related to the scope of the ban, that is, the extent to which the personal or sensitive health information of the children may be published. The mother argues that there should be a ban on publication of the children’s sensitive health information. The media parties state that, in principle, it may be appropriate to prohibit publication of the children’s health information to the extent that it is not relevant to the issues of public interest in the case.
[47] The difficulty is that there is no clarity on what health information will be in the record. There is a fresh evidence motion proceeding before me on November 12, 2019. Some of that fresh evidence may relate to the children’s health. There is some health-related information in the record from the arbitration, but no one has made submissions on what, if any, of that information should or should not be subject to a publication ban.
[48] There is a serious risk to the children in publishing their health information. There is a strong privacy interest in health information, and generally, very little public interest in accessing another’s private health information. In this case, there is a strong public interest in understanding certain aspects of the children’s health information – at the very least, that they are unvaccinated. There may be other information about the children’s health status that will be important to understanding the issues in this case; whether this is the case will be clearer once the motions for fresh evidence are heard. However, it is impossible to analyze the second prong of the Dagenais/Mentuck test without the relevant context to know what health information is at issue, and how it relates to the issues of public interest raised in the father’s appeal.
[49] I conclude that, on a temporary, without prejudice basis, there shall be a ban on publishing any information related to the children’s health, except the fact that they are unvaccinated, which may be published. This aspect of the motion shall return before me on November 12, 2019, to be heard together with the motions for fresh evidence. These motions shall collectively be set down for one day. At that time, the parties should be in a position to address the scope of the publication ban that is required, if any, with respect to the children’s health information.
Should the title of proceedings, documents, and publications refer to the parties only by initials?
[50] With respect to the initialization of the title of proceedings and court documents, and the mother’s request that any information published about this case refer to the parties by their initials only, I accept the media parties’ submission that the issue is different for each parent. I thus consider each of them separately.
[51] With respect to the mother, as far as I am aware there is currently no media report on the issues raised in this appeal that refers to her by name. She seeks an order that she be referred to by initials only to protect the identity of the children.
[52] The media parties argue that because the mother does not share a last name with the children, she has not established that there is a serious risk to the children’s interest if she is referred to by name. The mother argues that the risk to the children must be considered internationally, nationally and locally, and that locally there is a great risk to the children if she is referred to by name.
[53] I have already accepted that a publication ban protecting identifying information about the children is necessary to prevent a serious risk to their interests, and that referring to them by their initials appropriately balances the children’s interests against the public interest in open courts and free discussion of the important issues raised in the father’s appeal.
[54] In my view, the issue raised by the media parties is better understood as an argument that the children will not be identified if the mother is referred to by name, and as a result, there are no salutary effects of a publication ban prohibiting the publication of her name.
[55] I disagree. In my view, publishing the mother’s name may identify the children, at least within their local community. It is also within their local community that the children are at greatest risk of being ostracized and stigmatized as a result of their unvaccinated status. I find that referring to the mother by her initials in court documents, and banning publication of her identifying information, including her name, is an appropriate balance between protecting the children’s identity from disclosure on the one hand, and allowing for information to be reported and discussions to be had on the issues raised in the father’s appeal on the other. Nothing about the mother’s identity is relevant to the public importance of the issues raised. I order that there shall be a publication ban with respect to identifying information relating to the mother, including her name. She may be referred to by her initials.
[56] The question with respect to the father is more complicated. The father has already sought out media attention. He has launched his fundraising campaign on gofundme.com which currently uses his first name. The mother seeks an order that the father be referred to only by initials. The father is amenable to such an order, or an order that permits his first name to be published. The mother argues his first name is unusual, and disclosure of it will tend to identify the children.
[57] The media parties argue that the father has inserted himself into the story, and that as a result, his identity has become relevant. However, they recognize that the father shares a last name with the children. As a result, they propose referring to the father by his first name and last initial, or by his first name only.
[58] In my view, publishing the father’s first or full name may identify the children, at least within their local community, and particularly in light of the already-existing information in the public domain, which I address below. As I have already noted, it is within their local community that they are at greatest risk being ostracized or stigmatized due to their unvaccinated status.
[59] While the father has become part of the story, his role in the story is that of the children’s father. There is nothing particular about his identity that is relevant to the bigger issues in which the media and the public have taken an interest. In my view, the salutary effects of banning publication of his name – that is less likely the children’s identities will be uncovered – outweigh the deleterious effects of limiting the ability of others to publish the father’s first name. There shall be a publication ban with respect to identifying information relating to the father, including his name. He may be referred to by his initials. This limited publication ban does not limit discussion on the important issues raised on appeal and strikes an appropriate balance between the interests of the children and the interests of the public.
[60] The media parties also argue that any order banning publication of the parties’ identifying information not include the father’s voice or image. They argue that the father has made himself part of the story, and his voice and image have already been published and associated with this story.
[61] In my view, publishing the father’s image or voice is information that tends to identify the children, particularly in their local community. The father’s voice and image are not necessary for the public to access information about this case and have discussions about the issues raised in this case. In my view, the risk to the children from having their identities revealed outweighs the benefits of the media being able to publish the father’s voice and image.
[62] Since the mother’s voice and image have never been published, the argument in support of being able to publish her voice and image is weaker, and indeed, no one even addressed it in argument. However, for clarity, the publication ban I order shall prohibit the publication of the voice or image of either of the parties.
[63] Because I am of the view that court documents and publications shall be permitted to refer to the parties only through their initials, it follows that the title of proceedings shall use initials only to identify the parties. Again, this is a minimal incursion onto the open courts principle that does not hamper legitimate public debate and discussion, or access to information about the appeal, while protecting the children’s interests.
Should the court file be sealed?
[64] The mother seeks an order sealing the court file and directing the parties to file a public copy of the file from which identifying information is redacted. The mother relies on B.(A.) v. Canada (Attorney General), 2016 ONSC 1571, 129 O.R. 93d) 700, wherein a similar mechanism was employed in a case where the applicant sought medical assistance in dying, and requested certain privacy orders. The mother argues that the case for such a mechanism is even stronger here, where the children are not parties to the case. She fears that citizen-bloggers or un-credentialed journalists will access and publish identifying information from the court file despite the publication ban.
[65] There is no evidence before me of any interest in this issue taken by citizen-bloggers or un-credentialed journalists. To date, the court file is not sealed and there is no evidence of anyone obtaining access to it and reporting information that would identify the children.
[66] In L.C.F., Harvison-Young J. (as she then was) noted that even when courts step in to protect children in family law cases by imposing restrictions on the open court principle, “sealing orders are rare, and publication bans are restricted as much as possible”: at para. 50.
[67] In my view, there is no evidentiary basis to establish that a sealing order is necessary in view of the publication ban I have ordered. The publication ban is an alternative measure for protecting the interests of the children, and in my view, it suffices to do so without taking the additional extraordinary step of sealing the court file. Accordingly, the mother’s request to seal the court file is dismissed.
Should the publication ban extend to already-published reports?
[68] The mother seeks an order that parties who have published reports about this proceeding amend those reports to conform with the publication ban that I order herein. She argues that the media can edit their existing reports to remove reference to the father’s name, voice and image, the children’s genders, and any other identifying information.
[69] The media parties argue that the cat is out of the bag. They placed before me an affidavit showing search results that reveal the breadth of online content about this proceeding. As I have noted, this content is not just content maintained by the media parties, but by other forums, including Reddit, and forums that appear to be based in the United States, among others. They argue that an order that requires them to retroactively alter content is not practical. However, they suggest that a practical term to mitigate the risk to the children from the already-existing reports is an order that they not link to earlier reports on this proceeding in any new reports they create.
[70] The mother argues I should make the appropriate order and not worry about the practicalities of enforcement; she states enforcement is up to her.
[71] In my view, the court should not make orders that cannot practically be enforced. Doing so risks bringing the administration of justice into disrepute. Viewed practically, there is simply too much content on too many websites to take it down or amend it. Thus, while I accept that the existing reports pose a serious risk to the children in that their identities can be ascertained, and they may be stigmatized and ostracized as a result, the salutary effects of an order requiring amendment of existing publication do not outweigh the deleterious effects of such an order, given the practical impossibility of ever enforcing it. Because I do not accept that the proposed measure will actually attenuate the risk to the children, there is no point in ordering it. It would be nothing more than a limitation on the open court principle without any practical benefit whatsoever.
[72] Rather, an appropriate measure is that proposed by the media parties. I order that any future publications about this proceeding not link to any earlier publications that do not comply with the publication ban I have ordered herein. With time, this measure will protect the children’s identities because the reports that may identify the children will fall lower in the results of any online search that is done about this case.
Costs
[73] The parties have advised that they may seek costs against the other. No one is seeking costs against the media parties. If the parties cannot agree, and if both parties intend to seek costs, they may provide me with written submissions on costs not to exceed three pages, plus bills of costs and any relevant offers to settle, by July 5, 2019. They may deliver written responding submissions not to exceed two pages by July 10, 2019.
[74] Alternatively, if only one party is seeking costs, that party may deliver written submissions not to exceed three pages plus bills of costs and any relevant offers to settle by July 5, 2019. The other party may deliver responding submissions not to exceed three pages plus bills of costs and any relevant offers to settle by July 10, 2019. The first party may deliver reply submissions not to exceed two pages by July 12, 2019.
[75] Submissions may be delivered to my attention at Judges’ Administration, 361 University Avenue.
Conclusion
[76] I make the following orders:
a. There shall be a publication ban with respect to any identifying information relating to the children, including but not limited to their names, dates of birth, address(es), school(s), genders, images, or voices. b. There shall be no publication ban with respect to identifying the children’s ages, or their initials. c. There shall be a temporary, without prejudice, publication ban with respect to any health information related to the children, except the fact that they are unvaccinated, which may be published. Whether this publication ban should be set aside or modified shall be considered at the return of this motion before me on November 12, 2019, to be heard together with the motions for fresh evidence, for a full day. d. There shall be a publication ban with respect to any identifying information relating to the parties, including but not limited to their names, voices and images. e. There shall be no publication ban with respect to identifying the parties’ genders or initials. f. From this date forward, no published reports about this proceeding shall link to any earlier reports about this proceeding that do not comply with the terms of this order. g. The title of proceedings shall use initials to identify the parties. h. Any decisions, orders or other documents made public in this proceeding shall refer to the parties and their children solely by their initials. i. Any person who has gained access to the court file is prohibited from communicating to any other person the identity of the parties, the children, or any information that has the effect or could have the effect of identifying the parties or their children. j. The court file shall not be sealed.
J.T. Akbarali J. Date: June 28, 2019
