Warning Regarding Publication Restriction
The President of the panel hearing this appeal directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.
(2.1) The offences for the purposes of subsection (2) are (a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization; (b) a terrorism offence; (c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or (d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
(4) An applicant for an order shall (a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and (b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.
(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.
(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.
(7) In determining whether to make an order, the judge or justice shall consider (a) the right to a fair and public hearing; (b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed; (c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation; (d) society’s interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process; (e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant; (f) the salutary and deleterious effects of the proposed order; (g) the impact of the proposed order on the freedom of expression of those affected by it; and (h) any other factor that the judge or justice considers relevant.
(8) An order may be subject to any conditions that the judge or justice thinks fit.
(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way (a) the contents of an application; (b) any evidence taken, information given or submissions made at a hearing under subsection (6); or (c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15; 2015, c. 13, s. 19
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
Court of Appeal for Ontario
Judges: van Rensburg, Pardu and Copeland JJ.A.
BETWEEN
B.M.D. and A.M. Applicants (Appellants)
and
Her Majesty the Queen Respondent (Respondent)
AND BETWEEN
College of Physicians and Surgeons of Ontario Applicant (Respondent)
and
Her Majesty the Queen Respondent (Respondent)
Counsel: John A. Nicholson, for the appellants Elisabeth Widner and Amy Block, for the respondent College of Physicians and Surgeons of Ontario Peter Scrutton, for the respondent Crown
Heard: June 7, 2022
Pardu J.A.:
[1] A non-publication order under s. 486.5(9) of the Criminal Code, R.S.C. 1985, c. C-46 has been imposed on this matter. That order precludes the publication, broadcast or transmission of the following: the contents of the underlying application for a non-publication order; any evidence taken, information given, or submissions made at the hearing; or any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings.
[2] The full decision in B.M.D. et al. v. HMTQ contains information covered by that order. Accordingly, the full decision will not be made available on the Court of Appeal for Ontario’s website.
[3] These reasons contain this court’s analysis pertaining to the s. 486.5 analysis, balancing privacy interests and the open court principle, and the operation of s. 486.5(9). Any identifying information has been omitted.
[4] The analysis of an application under s. 486.5 should be anchored in the text of that provision, interpreted as required by the Dagenais / Mentuck / Sherman Estate test: Dagenais v. Canadian Broadcasting Corp., [1994] 3 SCR 835; R. v. Mentuck, 2001 SCC 76, 158 C.C.C. (3d) 449; Sherman Estate v. Donovan, 2021 SCC 25, 66 C.P.C. (8th) 1. Section 486.5 authorizes an order “directing that any information that could identify the victim or a witness” not be published if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice. In determining whether to make the order, the judge or justice must consider the factors listed under s. 486.5(7).
[5] Publication bans ordered by provincial judges under their common law or legislated discretionary authority may be challenged by way of certiorari: Dagenais, at pp. 864-866. The Dagenais / Mentuck / Sherman Estate test for whether a discretionary publication ban should be granted can be summarized as follows:
- Does court openness pose a serious risk to an important public interest?
- Is the order sought necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk?
- As a matter of proportionality, do the benefits of the order outweigh its negative effects?
[6] This test applies to all discretionary judicial orders limiting the openness of judicial proceedings: Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188, at para. 30.
[7] The work of the courts is presumptively open to observation by the media and the public: Sherman Estate, at paras. 1-2. However, an exception to the open court principle may be justified where dissemination of highly sensitive personal information would result in an affront to the affected person’s dignity, if this narrower aspect of privacy is shown to be at serious risk: Sherman Estate, at para. 7. In determining whether a privacy interest justifies an exception to the open court principle, two questions are relevant:
- Is the information in issue of a highly sensitive nature that goes beyond discomfort or embarrassment, such that its dissemination would amount to an affront to the dignity of the applicant?
- Does society as a whole have a stake in protecting the interests in issue such that the public would not tolerate publication, even in service of open proceedings?
[8] That said, some caution is required when weighing privacy interests in considering applications for discretionary publication bans, because some intrusion on privacy related to court proceedings is tolerated given the importance of the open court principle. As noted in Sherman Estate, “[i]t is a matter of settled law that open court proceedings by their nature can be a source of discomfort and embarrassment and these intrusions on privacy are generally seen as of insufficient importance to overcome the presumption of openness”: at para. 56.
[9] Judges must also consider the interests of the press and the public at large. Even where no member of the media comes forward to represent those interests, the judge must still consider the “demands of that fundamental right”: Mentuck, at para. 38. As noted in Mentuck, the absence of evidence opposed to granting the ban should not be taken as mitigating the importance of the right to free expression in applying the test: at para. 38. In the criminal context, there is a substantial public interest in the reporting of criminal convictions and the identity of the offender. The public should know that criminal courts function transparently. This serves an educational purpose, both to deter similar conduct and to encourage victims to come forward.
[10] Section 486.5(9) bars publication of information relating to the application for the publication ban, as outlined above. Pursuant to that provision, unless the judge or justice refuses to make a non-publication order relating to the s. 486.5 application, no person shall publish, broadcast or transmit the application. Here, since the application judge did not refuse to make a non-publication order under s. 486.5(9), the order made by him is amended to add that mandatory publication ban. The same mandatory order will attach to this court’s reasons.
Released: July 28, 2022 “K.M.v.R.” “G. Pardu J.A.” “I agree K. van Rensburg J.A.” “I agree Copeland J.A.”