M.E.H. v. Williams, 2012 ONCA 35

M.E.H. v. Williams; The Ottawa Citizen (a division of Postmedia Network Inc.) et al., Intervenors [Indexed as: H. (M.E.) v. Williams]

108 O.R. (3d) 321

2012 ONCA 35

Court of Appeal for Ontario,

Doherty, R.P. Armstrong and Hoy JJ.A.

January 24, 2012

Civil procedure -- Non-publication order -- Respondent intending to bring divorce proceedings against notorious sexual predator and murderer and applying successfully for non- publication and sealing orders -- Media organizations' appeal allowed -- Applicable standard of review of motion judge's decision being correctness -- Motion judge's finding that orders were necessary to prevent serious risk to proper administration of justice not supported by evidence.

The respondent's husband, W, was a sexual predator and murderer whose prosecution attracted intense media attention. The respondent intended to commence divorce proceedings against W. She brought a motion for non-publication and sealing orders. Her request was based entirely on the affidavit of her treating psychiatrist, Dr. Q. Media organizations were granted intervenor status and opposed the motion. The motion was granted. The media organizations appealed.

Held, the appeal should be allowed.

Any discretionary non-publication or sealing order must be consistent with Canadian Charter of Rights and Freedoms principles. If the order goes beyond the scope tolerated by the proper application of Charter principles, the making of the order constitutes an error of law. The applicable standard of review of the motion judge's decision was correctness. Even on a deferential standard of review, the orders could not stand as the motion judge's finding that the orders were necessary to prevent a serious risk to the proper administration of justice was unreasonable on the evidence proffered by the respondent. The absence of any affidavit from the respondent significantly undermined the weight that could be given to Dr. Q's opinion. Without evidence from the respondent, much of what Dr. Q. said was properly characterized as speculation and assumption. Dr. Q's opinion as to the need for the non-publication and sealing orders was premised on his belief that the media had engaged and would continue to engage in an unrelenting and very intrusive invasion of the respondent's privacy. There was no evidence to support that belief. Consequently, Dr. Q's opinion did not provide the kind of convincing evidence needed to meet the rigorous standard demanded by the necessity branch of the Dagenais/Mentuck test.

APPEAL from a non-publication order and a sealing order of Mackinnon J. (2011), 105 O.R. (3d) 344, [2011] O.J. No. 1739, 2011 ONSC 2022 (S.C.J.).

Cases referred to 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; R. v. Mentuck, [2001] 3 S.C.R. 442, [2001] S.C.J. No. 73, 2001 SCC 76, 205 D.L.R. (4th) 512, 277 N.R. 160, [2002] 2 W.W.R. 409, J.E. 2001-2142, 163 Man. R. (2d) 1, 158 C.C.C. (3d) 449, 47 C.R. (5th) 63, 51 W.C.B. (2d) 349, apld

Other cases referred to B. (A.) v. Bragg Communications Inc., [2011] N.S.J. No. 113, 2011 NSCA 26, 228 C.R.R. (2d) 181, 301 N.S.R. (2d) 34, 97 C.P.C. (6th) 54, 80 C.C.L.T. (3d) 180; Canadian Broadcasting Corp. v. Canada (Attorney General), [2011] 1 S.C.R. 19, [2011] S.C.J. No. 2, 2011 SCC 2, 2011EXP-346, 411 N.R. 23, J.E. 2011-189, 264 C.C.C. (3d) 1, 328 D.L.R. (4th) 128; [page322] Nova Scotia (Attorney General) v. MacIntyre, 1982 14 (SCC), [1982] 1 S.C.R. 175, [1982] S.C.J. No. 1, 132 D.L.R. (3d) 385, 40 N.R. 181, 49 N.S.R. (2d) 609, 65 C.C.C. (2d) 129, 26 C.R. (3d) 193, 7 W.C.B. 154, EYB 1982-149378; Ottawa Citizen Group Inc. v. R. (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.); P.A.B.D. #1 (Re), [2005] N.J. No. 394, 2005 NLTD 214, 253 Nfld. & P.E.I.R. 141, 20 C.P.C. (6th) 306, 144 A.C.W.S. (3d) 446 (S.C. (T.D.)); R. v. Canadian Broadcasting Corp. (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; R. v. Lavallee, 1990 95 (SCC), [1990] 1 S.C.R. 852, [1990] S.C.J. No. 36, 108 N.R. 321, [1990] 4 W.W.R. 1, J.E. 90-735, 67 Man. R. (2d) 1, 55 C.C.C. (3d) 97, 76 C.R. (3d) 329, 10 W.C.B. (2d) 101; Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522, [2002] S.C.J. No. 42, 2002 SCC 41, 211 D.L.R. (4th) 193, 287 N.R. 203, J.E. 2002-803, 40 Admin. L.R. (3d) 1, 44 C.E.L.R. (N.S.) 161, 20 C.P.C. (5th) 1, 18 C.P.R. (4th) 1, 93 C.R.R. (2d) 219, 113 A.C.W.S. (3d) 36; 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, affg (2003), 2003 13331 (ON CA), 67 O.R. (3d) 577, [2003] O.J. No. 4006, 232 D.L.R. (4th) 217, 178 O.A.C. 60, 178 C.C.C. (3d) 349, 17 C.R. (6th) 392, 110 C.R.R. (2d) 288, 59 W.C.B. (2d) 515 (C.A.); 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

Statutes referred to Canadian Charter of Rights and Freedoms Supreme Court Act, R.S.C. 1985, c. S-26, s. 40 [as am.]

Richard G. Dearden and Ryan Kennedy, for intervenors (appellants). Mary Jane Binks, Q.C., and Jonathan M. Richardson, for respondent.

The judgment of the court was delivered by

DOHERTY J.A.: -- I Overview

[1] The respondent proposes to commence a proceeding in which she will seek a divorce and corollary relief from her husband, David Russell Williams ("Williams"). She brought a motion seeking an order sealing the entire record in the proceeding she proposes to bring against Williams. Alternatively, the respondent sought an order banning publication of the medical [page323] evidence relied on in support of her motion and banning publication of any financial or medical records that may be produced during the proceedings against Williams. Although not specifically requested in the notice of motion, the respondent also sought an order prohibiting publication of any information that would identify her by name as the person bringing the proceedings against Williams.

[2] Williams did not oppose the motion. Various media organizations were served with notice of the motion and several, including the Ottawa Citizen and the Canadian Broadcasting Corporation (appellants), were granted intervenor status on the motion. They opposed the motion.

[3] The motion judge made a non-publication and sealing order. The orders were broad, but not as broad as requested by the respondent. The terms of the non-publication order can be summarized as follows:

-- A term banning publication of any information that served to identify the name, address or contact information of the respondent. She was to be referred to in the title of proceedings as M.E.H. Any accounts relating to the divorce proceedings were to refer to her by those initials or as the wife of Williams.

-- A term banning publication of any photograph or likeness of the respondent in any report or publication relating to the motion or to any aspect of the divorce proceeding.

-- A term banning publication of the name, address or contact coordinates of the respondent's employer in any report or publication relating to the motion or divorce proceedings.

-- A term banning publication of the respondent's social insurance number, her date and place of birth, the address of her real property, the names of any financial institutions with which she deals and the respondent's account numbers at those institutions in any report or publication relating to the motion or the divorce proceedings.

-- A term banning publication of any information filed in the divorce proceedings referable to the assets or liabilities of the respondent not derived from transfers or assignments to her from Williams after February 2010.

[4] To give effect to the non-publication order, the motion judge provided that a redacted version of the record with the [page324] information covered by the non-publication order removed from it would constitute the public record of the proceedings.

[5] In addition to the non-publication order, the motion judge ordered that any tax returns or income and expense portions of financial statements filed in the divorce proceedings by the respondent could be filed under seal.

[6] The motion judge also made a non-publication order in respect of the medical information filed on the motion and the domestic contract between Williams and the respondent produced on the motion. While the order itself is not clear, the parties have proceeded on the basis that the non-publication order with respect to the medical information and the domestic contract does not extend to the references to that information in the motion judge's reasons. I will also proceed on that basis.

[7] The appellants appeal from the order of the motion judge. They challenge most, but not all, of the terms of the order. The appellants do not challenge the non-publication order as it relates to the respondent's social insurance number, her date of birth or her bank account numbers. They also do not challenge the non-publication order applicable to the medical information and the domestic contract produced on the motion.

[8] I do not understand the appellants to concede that the unchallenged aspects of the motion judge's order were properly made. Instead, they simply choose not to make any arguments against those parts of the order because they regard the information covered by those terms to be irrelevant to their purposes, and they accept that the references in the motion judge's reasons to the medical evidence and the domestic contract are sufficient for their purposes.

[9] I would allow the appeal. The motion judge correctly identified the applicable legal principles. However, the evidence cannot support her conclusion that the orders were necessary to prevent a serious risk to the proper administration of justice. Absent that finding, the orders could not have been made under the controlling jurisprudence. II

Background

[10] In February 2010, Williams, who was at the time a colonel in the Canadian Forces and the commander of the air force base at Trenton, Ontario, was charged with two counts of first degree murder, two counts each of sexual assault and forcible confinement, and 82 counts of break and enter. The allegations were stunning in their depravity, especially in light of Williams' [page325] high military rank and his apparently sterling character. In October 2010, Williams pled guilty to the charges and was sentenced to life imprisonment without eligibility for parole for 25 years on both counts of first degree murder. Concurrent sentences were imposed on the other charges.

[11] Understandably, the charges and prosecution of Williams sparked widespread public interest. That interest has been reflected in intense media coverage, particularly when the charges were laid and when Williams pled guilty and was sentenced.

[12] According to the material filed on the motion, and I do not understand the appellants to challenge this, the respondent was shocked and devastated by the charges laid against her husband. Through the revelations that followed the laying of the charges, the respondent learned that her husband, to whom she had been married for many years and who she believed to be a highly respected, successful and loving man, was in reality a sexual predator and cold-blooded serial murderer. On the unchallenged evidence, the respondent is indeed yet another victim of Williams' depravity.

[13] The respondent finds herself associated in media reports with Williams, now one of Canada's most notorious murderers. Some media reports have identified her by name and referred to her place of employment and her position there. The respondent's photograph has appeared in the newspaper in association with some of these articles. III

The Proceedings on the Motion

(i) The submissions

[14] The respondent's request for non-publication and sealing orders was based entirely on the affidavit of her treating psychiatrist, Dr. W. Quan. He was cross-examined on his affidavit.

[15] Counsel for the respondent argued that Dr. Quan's evidence established a real and substantial risk to the respondent's mental well-being if the media was allowed to identify her by name or other details and/or publish the kind of financial and personal information routinely filed in divorce proceedings and available to the media in Ontario. Respondent's counsel submitted that the evidence went beyond evidence demonstrating the respondent's personal distress and embarrassment and spoke to the respondent's ability to gain access to the courts, an issue of public importance to the administration of justice. Counsel contended that a litigant like the respondent, who is required to go to court to obtain a divorce to sever her relationship with her [page326] husband, should not be put in a position where the publicity attendant upon gaining that court access would pose a substantial risk to the litigant's mental health.

[16] Counsel for the respondent next argued that the salutary effects of the non-publication and sealing orders sought outweighed the deleterious effects of those orders, including the inevitable negative impact on freedom of expression and the open court principle. Counsel stressed that while divorce proceedings, like any court proceeding, have an important public component, the matters at issue in this proceeding were essentially private matters between the respondent and Williams.

[17] Counsel for the appellants submitted that, absent an affidavit from the respondent, the evidence of Dr. Quan was inadmissible. Counsel further submitted that even if Dr. Quan's evidence was admissible, it did not provide the kind of convincing evidence needed to establish harm to the administration of justice that would warrant the wide-ranging non-publication and sealing orders sought.

[18] Counsel stressed the absence of any affidavit from the respondent and her ongoing participation since June 2010 in a lawsuit in which she and Williams are defendants in a fraudulent conveyance action brought by one of Williams' victims. The respondent's statement of defence and an affidavit she filed in that proceeding revealed a good deal of the information that she sought cloaked in non-publication and sealing orders in her pending divorce proceedings. No non- publication or sealing order had been made in respect of the respondent's identity or the information contained in her statement of defence and the affidavit filed in the fraudulent conveyance action. The media had referred to the contents of that material and nothing filed on the motion suggested that the media reports had caused any harm to the respondent or interfered with her ability to defend herself in that proceeding.

[19] The appellants also led evidence on the motion that the respondent's lawyer had given an interview to a reporter of the Ottawa Citizen in late December 2010 in which she identified the respondent by name, referred to her place of employment, her intention to seek a divorce and described in a generic way the material that would be filed in the anticipated divorce proceeding. The media again reported on this information in early 2011. The respondent led no evidence that she suffered any adverse consequences from the media reports.

[20] Counsel for the appellant also rejected the characterization of the litigation as essentially a private matter. He submitted that media access to and reporting on divorce proceedings, as [page327] with other court proceedings, furthered the transparency of those proceedings, the public accountability of those involved in the proceedings and in some cases the reliability of the results achieved. Counsel stressed that transparency, accountability and reliability are all essential to the continued public confidence in and respect for the administration of justice. On a more specific plane, counsel submitted that the division of property between the respondent and Williams, especially as it related to his military pension, was a matter of public interest.

(ii) The motion judge's reasons

[21] The motion judge appreciated that the order sought was an extraordinary one in that it would compromise the open court principle, which she described (at para. 6) as one of "fundamental importance . . . to our democratic society". She approached her task using the two-step approach identified in a series of cases from the Supreme Court of Canada involving non-publication orders and/or sealing orders: see Toronto Star Newspapers Ltd. v. Ontario, [2005] 2 S.C.R. 188, [2005] S.C.J. No. 41, 2005 SCC 41, at para. 26; Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522, [2002] S.C.J. No. 42, 2002 SCC 41, at paras. 45-46; R. v. Mentuck, [2001] 3 S.C.R. 442, [2001] S.C.J. No. 73, 2001 SCC 76, at para. 32. This approach is commonly referred to as the Dagenais/Mentuck test.

[22] In Mentuck, Iacobucci J. said, at para. 32:

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.

[23] The motion judge concluded (at para. 27) that the first requirement in Mentuck had been met by the respondent:

The Applicant has shown a real and substantial risk to herself which goes beyond personal sensibilities or discomfort, mere embarrassment or personal preference. She requires access to this court in order to obtain a divorce and to finalize her financial affairs with the Respondent. There is a real risk that her fragile recovery could be compromised by the likely renewed publicity that the proposed litigation will occasion. She has established a real and serious risk to the public interest that access to the court not be barred by personal consequences of publicity. (Emphasis added) [page328] IV

Analysis

[24] The first branch of the two-part inquiry set out in Mentuck, described as the "necessity" branch, is the focus of this appeal. Before turning to the evidence, I will set out some of the important features of that branch of the test.

(i) There must be a public interest at stake

[25] Mentuck describes non-publication and sealing orders as potentially justifiable if "necessary in order to prevent a serious risk to the proper administration of justice". A serious risk to public interests other than those that fall under the broad rubric of the "proper administration of justice" can also meet the necessity requirement under the first branch of the Dagenais/Mentuck test: Sierra Club of Canada, at paras. 46-51, 55. The interest jeopardized must, however, have a public component. Purely personal interests cannot justify non-publication or sealing orders. Thus, the personal concerns of a litigant, including concerns about the very real emotional distress and embarrassment that can be occasioned to litigants when justice is done in public, will not, standing alone, satisfy the necessity branch of the test: Nova Scotia (Attorney General) v. MacIntyre, 1982 14 (SCC), [1982] 1 S.C.R. 175, [1982] S.C.J. No. 1, at p. 185 S.C.R.; Sierra Club of Canada, at para. 55; B. (A.) v. Bragg Communications Inc., [2011] N.S.J. No. 113, 2011 NSCA 26, 301 N.S.R. (2d) 34, at paras. 73-75.

[26] The respondent framed her claim in terms of her right to gain access to the courts to seek legal redress. I agree with her contention that access to the courts is an essential component of the "proper administration of justice". There is no need to give any further consideration to other interests which may qualify under the first branch of the Dagenais/ Mentuck test.

[27] There can be no doubt that an individual's right to seek and obtain appropriate relief in a court proceeding is a matter of significant public interest impacting on the proper administration of justice. The public interest in access to the courts for legal relief is particularly important where that access is required to give legal effect to a decision as integral to personal autonomy as the decision to seek a divorce. If insisting on the openness usually demanded of court proceedings will effectively close the courtroom door to a litigant because of the physical and/or emotional consequences to that litigant of maintaining the openness of the courts, I am satisfied that the first component of the Dagenais/Mentuck test would be made out assuming that there was no reasonable alternative to some limit on the openness of [page329] the courts. The court would then have to go on and address the competing interests under the second component of that test before deciding what limit, if any, would be placed on the openness of the courts.

[28] Counsel for the appellants accepted that access to the courts is a matter of public interest that affects the proper administration of justice. He submitted that the public interest is engaged only where it is established that the litigant would not go to court absent the privacy protections afforded by the non-publication and sealing orders.

[29] In my view, it is not necessary that a litigant establish that he or she would not go to court absent the privacy protections requested. Access to the courts should not come at the cost of a substantial risk of serious debilitating emotional or physical harm to the party seeking access. Access to the courts at that cost would be more illusory than real.

[30] The distinction between personal emotional distress and embarrassment, which cannot justify limiting publication of or access to court proceedings and records, and serious debilitating physical or emotional harm that goes to the ability of a litigant to access the court is one of degree. Expert medical opinion firmly planted in reliable evidence of the specific circumstances and the condition of the litigant will usually be crucial in drawing that distinction: see P.A.B.D. #1 (Re), [2005] N.J. No. 394, 2005 NLTD 214 (S.C. (T.D.)), at para. 43.

(ii) The necessity inquiry comes first

[31] The necessity branch focuses exclusively on the existence of a serious risk to a public interest that can only be addressed by some form of non-publication or sealing order. The potential benefits of the order are irrelevant at this first stage of the inquiry: Mentuck, at para. 34. Unless a serious risk to a public interest is established, the court does not proceed to the second branch of the inquiry where competing interests must be balanced.

[32] As there is no balancing of competing interests at the first stage, it is wrong at that stage to consider the extent to which the societal interests underlying and furthered by freedom of expression and the open court principle are engaged in that particular case. Even if those values are only marginally engaged (the respondent's submission in this case), restriction on media access to and publication in respect of court proceedings cannot be justified unless it is necessary to prevent a serious risk to a public interest. A court faced with a case like this one where decency suggests some kind of protection for the respondent [page330] must avoid the temptation to begin by asking: where is the harm in allowing the respondent to proceed with some degree of anonymity and without her personal information being available to the media? Rather, the court must ask: has the respondent shown that without the protective orders she seeks there is a serious risk to the proper administration of justice?

(iii) Freedom of expression and the open court principle

[33] In approaching the necessity branch of the inquiry, the high constitutional stakes must be placed at the forefront of the analysis. Freedom of expression, including freedom of the press and other media communications, is a constitutionally protected fundamental freedom. The constitutional right to freedom of expression protects the media's access to and ability to report on court proceedings. The exercise of this fundamental freedom in the context of media coverage of court proceedings is essential to the promotion of the open court principle, a central feature of not only Canadian justice, but Canadian democracy: Canadian Broadcasting Corp. v. Canada (Attorney General), [2011] 1 S.C.R. 19, [2011] S.C.J. No. 2, 2011 SCC 2, at paras. 1-2; Vancouver Sun (Re), [2004] 2 S.C.R. 332, [2004] S.C.J. No. 41, 2004 SCC 43, at para. 26; Ottawa Citizen Group Inc. v. R. (2005), 2005 93777 (ON CA), 75 O.R. (3d) 590, [2005] O.J. No. 2209 (C.A.), at paras. 50-55; R. v. Canadian Broadcasting Corp. (2010), 102 O.R. (3d) 673, [2010] O.J. No. 4615, 2010 ONCA 726, at paras. 22-24.

[34] Limits on freedom of expression, including limits that restrict media access to and publication of court proceedings, can be justified. However, the centrality of freedom of expression and the open court principle to both Canadian democracy and individual freedoms in Canada demands that a party seeking to limit freedom of expression and the openness of the courts carry a significant legal and evidentiary burden. Evidence said to justify non-publication and sealing orders must be "convincing" and "subject to close scrutiny and meet rigorous standards": R. v. Canadian Broadcasting Corp., at para. 40; Toronto Star Newspapers Ltd. v. Ontario (2003), 2003 13331 (ON CA), 67 O.R. (3d) 577, [2003] O.J. No. 4006 (C.A.), at para. 19, affd [2005] 2 S.C.R. 188, [2005] S.C.J. No. 41, 2005 SCC 41, at para. 41; see, also, Ottawa Citizen Group, at para. 54. V

Standard of Review

[35] As I have already indicated, the motion judge applied the correct legal principles to the facts as she found them. Normally, [page331] this kind of exercise attracts a deferential standard of review: see, e.g., Bragg Communications, at paras. 36, 100-103. However, in Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, [1994] S.C.J. No. 104, at pp. 864-65 S.C.R., Lamer J., for the majority, held that any discretionary order banning publication must be consistent with Canadian Charter of Rights and Freedoms principles and that, if the order goes beyond the scope tolerated by the proper application of Charter principles, the making of the order constitutes an error of law. The same analysis has been applied to sealing orders: Ottawa Citizen Group, at para. 26.

[36] Although Dagenais and Ottawa Citizen Group both involved prerogative writ challenges to non-publication and sealing orders, I see no reason to characterize the nature of the decision differently because it is challenged by way of appeal rather than prerogative writ. I note that in Mentuck, an appeal to the Supreme Court pursuant to s. 40 of the Supreme Court Act, R.S.C. 1985, c. S-26, the court, without alluding to the standard of review, reviewed the orders made by the trial judge using a correctness standard: Mentuck, at paras. 41-43, 46-47; see, also, Sierra Club of Canada, at para. 48.

[37] The characterization of non-publication and sealing orders that are not Charter compliant as errors in law strongly implies a review of those orders on a correctness standard. In my view, the motion judge's decision should be reviewed on a correctness standard. However, as I will explain in my review of the evidence, I am also satisfied that the motion judge's finding that the orders were necessary to prevent a serious risk to the proper administration of justice was unreasonable on the evidence proffered by the respondent. Consequently, even on a deferential standard of review, the orders cannot stand. VI

Should the Order Have Been Granted?

(i) Dr. Quan's evidence

[38] Dr. Quan first saw the respondent in March 2010, about one month after Williams was charged. He has continued to see her about once a month since then. Dr. Quan described the respondent as initially "devastated" by the revelations about Williams. She was shocked, confused, unable to sleep, unable to focus and she had difficulties with her memory. The respondent felt as though her entire life had been "turned upside down". She found herself continually thinking about Williams' victims. [page332]

[39] In the weeks immediately following the revelations, the respondent could not stay in the family home or go to work. Within about two to three months, she had returned to her home and was working full-time at her former position.

[40] The respondent has no immediate family, but does have strong support from a group of close friends and neighbours. Her employer and co-workers have been supportive. The respondent's job is a demanding but fulfilling one. It is very important to her.

[41] Dr. Quan indicated that the respondent improved quite quickly after the intense initial shock of the disclosures about Williams. She had made significant gains by the summer of 2010. Dr. Quan reported continued progress in December 2010, despite the very intense publicity during the trial proceedings in October. The respondent had wisely mitigated the impact of those proceedings on her by leaving the country for a holiday while those proceedings were ongoing.

[42] Dr. Quan reported that the respondent's physical symptoms included weight loss, back pain, headaches and temporomandibular joint dysfunction caused by clenching her teeth. She also exhibited depressive symptomatology of a moderate degree of severity, anxiety of a moderate degree of severity, ongoing symptoms of emotional shock and certain post- traumatic stress disorder symptoms of a moderate degree of severity. She had not required hospitalization, medication or treatment other than her monthly meetings with Dr. Quan.

[43] Dr. Quan stressed that the respondent was very apprehensive about the publicity that would flow from her divorce proceedings. Each wave of publicity precipitated by a court proceeding increased her anxiety and presented coping challenges for her. The respondent believed that her job was threatened by the ongoing media coverage connecting her to Williams.

[44] Dr. Quan believed that obtaining a divorce and related corollary relief was important to the respondent as it would enable her to make a complete break from Williams. This break was important to her emotional well-being.

[45] The tenor of Dr. Quan's opinion is captured in his letter to counsel in December 2010, his report in January 2011 and his affidavit in February 2011. In the report, Dr. Quan stated:

[The respondent] is a private individual and she does need calm, peace and quiet in order to continue functioning normally. She currently feels that she has no privacy left. If pushed beyond her ability to cope, [the respondent] will definitely become more seriously ill and most likely incapable of working any further. She has been successful in her workplace through sheer drive, determination and effort despite significant emotional distress and problems. If pushed further by constant invasions of her privacy, there is a [page333] very strong possibility that [the respondent] will deteriorate and be incapable of functioning at her current level of ability.

[The respondent] is intending to seek a divorce from her husband. I support this decision since it will be of therapeutic benefit to her. However, I fear the added media attention this would attract would be severely detrimental and that it would probably result in a deterioration of her emotional heath.

[46] In the letter, Dr. Quan opined:

[T]here is a very real and grave potential that her fragile recovery can be seriously compromised if she cannot be protected from the persistent, insistent and incessant efforts of the media to gain entry into her private life.

[The respondent] has made a very concerted and courageous effort to return to a normal productive life dedicated to the common good. These efforts are at risk of being destroyed by the unwanted, undeserved and unproductive efforts of media to meddle in her private life.

[47] In his affidavit dated February 2, 2011, Dr. Quan reiterated the same concerns:

[6] In particular I was concerned that [the respondent's] precarious mental and emotional state would be imperilled if she continued to be the subject of media harassment regarding her private life and Mr. Williams. . . . . .

[19] [. . . The respondent] currently has a very tenuous hold on her mental health and is a mere shadow of her usual self.

[20] [The respondent] requires calm, peace and quiet if she is to continue functioning normally, which I believe will not occur if her application for divorce plays out in the media.

[21] In particular, her employment has been what has enabled her to keep what remains of her mental health intact. [The respondent] is particularly distressed and threatened that she will be unable to continue her current position if the media onslaught continues.

[22] I believe that if pushed further by constant invasions of her privacy, there is a very strong possibility that [the respondent] will deteriorate and be incapable of functioning at her current level of ability.

[48] Dr. Quan did not offer any opinion as to whether the respondent would seek a divorce if she was not guaranteed the kind of anonymity and privacy she sought through the non- publication and sealing orders.

[49] Dr. Quan acknowledged in cross-examination that he had virtually no first-hand knowledge of any of the media coverage as it related to the respondent. He testified that he did his best not to read any of the newspaper reports that referred to the respondent.

[50] Dr. Quan was also cross-examined about the impact of the publicity on the respondent's employment. He agreed that he had no contact with anyone at the respondent's place of [page334] employment and had no knowledge of how, if at all, the media coverage could affect that employment. Dr. Quan acknowledged that he understood from the respondent's comments to him that her employer had been supportive during the ordeal.

(ii) Assessing Dr. Quan's evidence

[51] Counsel for the appellants argued that Dr. Quan's evidence was not admissible in that it was based on statements made to him by the respondent. Counsel submitted that without an affidavit from the respondent attesting to the truth of what she said to Dr. Quan, and without affording the appellants the opportunity to test her assertions by cross-examination, Dr. Quan could not rely on the respondent's statements for their truth.

[52] I do not agree that Dr. Quan's evidence was inadmissible. Dr. Quan is a qualified clinical psychiatrist. He saw the respondent about a dozen times between March 2010 and March 2011. He based his clinical judgment as to the respondent's mental state on his observations of her over one year, the results of certain psychological tests he administered, a report from the family doctor and things said to him by the respondent. These are sources that clinical psychiatrists routinely look to when forming their opinions. Dr. Quan was entitled to advance the opinion he did: see R. v. Lavallee, 1990 95 (SCC), [1990] 1 S.C.R. 852, [1990] S.C.J. No. 36.

[53] There is, however, force to the appellants' submission that the absence of any affidavit from the respondent significantly undermines the weight that can be given to Dr. Quan's opinion. Without evidence from the respondent, much of what Dr. Quan said in his letters and reports is properly characterized as speculation and assumption.

[54] It is clear that Dr. Quan's opinion as to the need for the non-publication and sealing orders was premised on his belief that the media had engaged in an unrelenting and very intrusive invasion of the respondent's privacy beginning when Williams was charged and continuing through to the proposed divorce proceedings. Dr. Quan's letters to counsel and his report are replete with phrases like "the media onslaught", the "media harassment regarding her private life", "the constant invasions of her privacy", "the media feeding frenzy", "the unwanted, undeserved and unproductive efforts of media to meddle in her private life" and the "persistent, insistent and incessant efforts of the media to gain entry into her private life".

[55] There is quite simply no evidence to support any of these characterizations. The respondent was clearly the person who [page335] could have spoken most directly to her experiences with the media and the nature and degree to which her privacy had been invaded by the media. She chose not to do so.

[56] In the same vein, Dr. Quan expressed the view that the publicity surrounding the proposed divorce proceeding could adversely affect the respondent's employment which in turn could cause significant damage to her emotional well-being. Once again, there was no evidence to suggest any possible harm to the respondent's employment. If the potential for that harm existed, the respondent or her employer were the logical persons to give that evidence.

[57] Assuming that Dr. Quan's opinion goes so far as to assert a real risk that the respondent would suffer the degree of emotional harm required to engage the public interest in maintaining access to the courts, that opinion rests entirely on his assumption that the respondent would be subject to media harassment occasioned by "persistent, insistent and incessant" efforts to invade her privacy. These assumptions have no foundation in the evidence. Consequently, Dr. Quan's opinion cannot be said to provide the kind of convincing evidence needed to meet the rigorous standard demanded by the necessity branch of the Dagenais/Mentuck test.

[58] I also have difficulty squaring Dr. Quan's opinion as to the dire potential effect of publicity surrounding the divorce proceeding with the respondent's reaction to the publicity surrounding the earlier court proceedings involving Williams. She has endured, and I would say overcome, the worst of the media storm surrounding Williams. After the intense initial shock, she has picked up the pieces of her life and gone about the business of living that life. There is no reason to think that any publicity arising from the divorce proceedings will come remotely close to the publicity that surrounded Williams' criminal proceedings at which Williams' crimes and his confessions to those crimes were publicly examined in minute detail. Any media attention arising from the divorce proceeding will surely be short-lived and hardly front page news.

[59] Dr. Quan's opinion is also contradicted by the unchallenged evidence concerning the fraudulent conveyance proceeding. In that proceeding, the plaintiff, one of Williams' sexual assault victims, claims that Williams fraudulently transferred the family home to the respondent. The respondent's statement of defence and the contents of her affidavit have been referred to in the media.

[60] There was no evidence filed on this motion to suggest that the media coverage of the fraudulent conveyance proceeding has [page336] amounted to a "feeding frenzy" or has been "persistent, insistent and incessant". Perhaps, more to the point, there was no evidence filed on the motion that media access to the fraudulent conveyance proceeding and publication of material filed in that proceeding have in any way negatively affected the respondent's ability to fully participate in that proceeding. The media's reporting of the fraudulent conveyance claim and the absence of evidence of any adverse impact on the respondent are significant as there is likely to be an overlap between the issues in that proceeding and some of the issues that may arise in the divorce proceeding.

[61] The evidence filed on the motion by the appellants of the media reaction to the proposed divorce proceeding also undermines Dr. Quan's opinion. On that evidence, a reporter from the Ottawa Citizen sought information about the potential divorce proceedings from the respondent's lawyer. He did not approach the respondent directly. In the ensuing interview, counsel provided information, much of which the respondent now seeks to have cloaked in the non-publication and sealing orders. That information was reported in the press in a matter- of-fact way. There was no evidence filed on the motion that the media reporting of the respondent's name, her intention to seek a divorce and a generic description of the material that would be filed in the divorce proceeding had any negative impact on the respondent or had in any way affected her decision to proceed with the divorce action. VII

Conclusion

[62] The motion judge erred in law in exercising her discretion in favour of granting the non-publication and sealing orders. The material presented by the respondent did not provide the kind of convincing evidence needed to satisfy the first branch of the Dagenais/Mentuck test. It is consequently unnecessary to consider the second branch of that test. The orders made by the motion judge must be set aside.

[63] I would allow the appeal and with one modification set aside the sealing and non-publication orders made except to the extent that those orders were not challenged on appeal (see para. 7, above). The one modification relates to the non- publication order made with respect to the medical information filed on the motion. As indicated above (para. 6), the parties agree that the motion judge's non-publication order referable to the medical information did not extend to the references to that [page337] information in her reasons. The appellants did not challenge that part of the non-publication order. I would vary that part of the order to provide that the non-publication order with respect to the medical information does not extend to references to that information found in either the motion judge's reasons or these reasons.

[64] The interim order made on consent at the oral argument of this appeal prohibiting publication of material filed or information referred to in this court where that material or information was subject to the orders made on the motion expires with the release of these reasons. Normally, this court's order would take effect immediately. However, given the subject matter of this order, unless it is held in abeyance for some brief period of time, the respondent would not have any meaningful opportunity to consider what steps, if any, she should take to challenge this order. I would direct that the order of this court take effect 14 days after the release of these reasons. The order of the motion judge and the interim order of this court will remain in effect until then unless otherwise ordered.

[65] The appellants are entitled to their costs, if demanded, both here and on the motion. I would fix the costs of the appeal in the amount of $15,000, inclusive of disbursements and HST.

[66] The court was advised that the motion judge fixed the costs of the motion at $25,000 in favour of the respondent. The parties cannot agree as to the appropriate order in respect of the costs of the motion. This court is not in a position to fix those costs. I would remit the matter of the costs of the motion to the motion judge.

Appeal allowed.