Ontario Court of Justice

Date: September 12, 2023 Court File No.: 21-0106 Information No.: 2460 999 21 0106-001

BETWEEN: His Majesty the King (Ministry of Natural Resources and Forestry) — AND — Lesley TOKAR

Before: Justice of the Peace M. Hudswell

Heard: June 14, 2023 (in part), and by written submissions Reasons released on: September 12, 2023

Counsel: B. Wilkie, Counsel for the prosecution L. Tokar, on his own behalf

Ruling on Publication Ban Motion

JUSTICE OF THE PEACE M. Hudswell:

[1] On April 25, 2021, Mr. Leslie Tokar, the defendant, was charged with five offences under the Fish and Wildlife Conservation Act, 1997, S.O. 1997, c. 41.

[2] The first day of trial was held on June 14, 2023, and is set to continue in November 2023. On the first day, Mr. Tokar brought a without notice motion asking the Court to impose a publication ban to protect information he intended to share about a private medical condition. Preliminary oral submissions were made on June 14, 2023 followed by substantive written submissions filed with the Court. The Crown opposes the motion.

The Law

[3] The sole issue on this motion is whether the Court should impose a publication ban.

[4] The Provincial Offences Act, R.S.O. 1990, c. P.33 provides very limited authority to impose a publication ban under section 52(3) regarding minors. However, there is authority that this Court has jurisdiction to issue a common law publication ban in the absence of statutory authority.

[5] In Sherman Estate v. Don o van, [2021] SCC 25 (“Sherman”), at para. 44, the Supreme Court of Canada held that the open court principle “is engaged by all judicial proceedings, whatever their nature.” The Crown concedes that this Court may have jurisdiction to issue a publication ban in certain circumstances.

[6] In Sherman, the Court reformulated the common law test for a publication ban and recognized personal privacy as a basis for a court to exercise its discretion to limit the open court presumption.

[7] Under the Sherman test, a court can order discretionary limits on court openness only where the applicant establishes all three of the following:

(1) court openness poses a serious risk to an important public interest;

(2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,

(3) as a matter of proportionality, the benefits of the order outweigh its negative effects.

(Sherman, at para. 38)

[8] The test is a stringent one that is not easily satisfied. The person seeking to restrict access or publication has the onus to displace the general rule of openness. The open court principle takes primacy over privacy interests, and exceptions to openness, which will be limited and exceptional, must be proven on a case-by-case basis: see Sherman, at paras. 38, 39, 62 and 63.

[9] When deciding whether an important public interest is at stake, the Supreme Court in Sherman held that the protection of individual dignity is considered an important public interest, especially when it involves highly sensitive personal information. The Court provided examples of the types of "sensitive personal information that, if exposed, could give rise to a serious risk" to individual dignity, including stigmatized medical conditions, stigmatized work, sexual orientation and subjection to sexual assault or harassment: Sherman, at para. 77. While acknowledging that the publication of this type of private information is a concern felt "first and foremost" by the person involved, there is nonetheless a public interest in its protection: Sherman, at para. 48. Personal privacy is considered in our society to be a valuable commodity worthy of safeguarding.

[10] A party to a proceeding seeking to protect the confidentiality of personal health records must meet the test in Sherman. While it may not be difficult to establish a privacy interest in personal health records, in the case of Bulakhtina v. Complaints Committee of the Death Investigation Oversight Council, [2022] O.J. No. 3196 (“Bulakhtina”), the Court offered the reminder at para. 12 that this is the “first and easiest step in the process” and went on to state that “it is not the case that there is a prima facie entitlement to have these records sealed, just because there is an important privacy interest engaged.” Further, the open court principle frequently requires that information that is private in nature, such as medical records, must be disclosed publicly: Bulakhtina, at para. 12.

[11] Moving to the question of what constitutes a serious risk, the Supreme Court in Sherman was clear that the serious risk requirement is a “high bar” intended to maintain what the Court described at para. 3 as the "strong presumption of open courts.” The Court said the risk has to be real and well grounded in the evidence, and there has to be a convincing evidentiary basis for the requested relief: Sherman, at para.102. While direct evidence may not be required to establish a serious risk and it is possible to identify "objectively discernible harm" on the basis of logical inferences, the Court held that "this process of inferential reasoning is not a licence to engage in impermissible speculation": Sherman, at para. 97. Factors such as the extent to which the information will be disseminated in the absence of a court order, the extent to which the information is already in the public domain and the probability the information in question will be disseminated are relevant considerations in evaluating the seriousness of the risk: Sherman, at paras. 80-83.

Position of the Parties

The Defendant/Applicant

[12] Initially, Mr. Tokar informed the Court that he intended to use his medical condition as a defence but was worried about potential embarrassment and professional repercussions if the information became public. However, in his written submissions, Mr. Tokar later clarified that he intended to share details about his medical condition not as a defence or excuse for the charges but rather to “allow for a full understanding of the events of that day.”

[13] Mr. Tokar relies on Sherman Estate and Khan v. College of Physicians and Surgeons of Ontario 2023 ONSC 848 (“Khan”) in support that his medical records involve an important privacy interest. He submits that publication of his records would be embarrassing and could affect him professionally, however did not provide any further details. Regarding the second and third steps of the Sherman test, Mr. Tokar left the discussion of any other alternative measures with the Court and on the matter of proportionality, indicates that “the ban of publication and no availability of public transcripts of the trial” is a “very minor inconvenience” when compared to his “embarrassment and possible professional and personal repercussions.”

The Crown/Respondent

[14] The Crown submits that Mr. Tokar has made an unprecedented request for a publication ban and that he has not met the threshold in the first stage of the Sherman test for three reasons: 1) it is unclear whether Mr. Tokar’s medical health information is relevant to the trial 2) his claim that publication may have an impact him has not been substantiated in any meaningful way and, 3) although disclosure of medical information may impact him beyond embarrassment, this is a very subjective view and ignores that judicial proceedings often do result in embarrassment to participants.

[15] The Crown did not provide submissions on the second or third step of the Sherman test.

Analysis

[16] The Applicant has failed to meet the high threshold required to meet the test for a common law publication ban. Three considerations are dominant in my reasoning and focus on the first and third steps of the Sherman test.

[17] First, an examination of the seriousness of risk to an important public interest should include an analysis of the purpose required of the evidence to be tendered. In reviewing the cases submitted by both parties, it is clear that the evidence at issue was central and necessary to the issues to be decided by the court. For example, in Sherman, the evidence involved probate files for an estate (application dismissed). In Khan, the evidence involved third-party personal health records of patients whose physician was involved in professional disciplinary proceedings (application granted). In R. v. Quintal, 2003 ABPC 79, [2003] A.J. 509, the evidence involved the accused’s psychological assessment tendered for the purpose of sentencing (application dismissed, in part).

[18] I accept the Crown’s argument that it is unclear how Mr. Tokar’s medical health information may be relevant to the charges before the Court under the Fish and Wildlife Conservation Act. The charges allege that Mr. Tokar failed to carry a licence while hunting and produce other documentation upon request, unlawfully hunted turkeys and unlawfully used a shotgun. While the nature of Mr. Tokar’s medical condition is unknown, I would note that the offences before the Court are strict liability offences where proof of a mental state of mind, or mens rea, for example, knowledge, intention, wilfulness or recklessness, is irrelevant.

[19] Based on Mr. Tokar’s written submissions, disclosure of his personal medical information is needed “to form part of the entire picture to allow for a full understanding of the events of that day.” Still, according to his own submissions, this information will not have a direct bearing on any potential excuse or defence he may choose to put forward. In fact, Mr. Tokar submits to the Court that he “can confidently state that the information is in no way a defence to any of the charges laid against me…” From this, it appears that Mr. Tokar’s proposed evidence about his medical condition is essentially contextual or background information. This is also known as narrative evidence.

[20] The Court plays an important role in assessing the relevance of evidence (see, for example, R. v. Forrester, 2019 ONCA 255 at para. 16. Evidence is not admissible unless it is relevant. Relevance must be considered in the context of establishing the prosecution’s case for the offences charged and any defences raised by the defendant: see, for example, R. v. Strongitharm [2016] N.J. No 56 at para. 9 citing R. v. Cloutier, [1979] 2 S.C.R. 709. Evidence is relevant if, as a matter of logic and human experience, the evidence tends to prove a fact or matter in issue: see, for example, R. v. Truscott, [2006] O.J. No. 4171 (“Truscott”), at paras. 22-23. In other words, the information must be of consequence in determining the case and will be considered irrelevant if it is not material to the proceedings. Further, while the relevance of evidence may only become clear after the “evidentiary picture has been fully developed,” a court should not hear evidence “on the chance that it might somehow, at some time, in some way become relevant in the proceedings”: Truscott, at para. 23.

[21] Regarding narrative evidence, the basic requirements of relevance are somewhat relaxed as it is evidence that is not adduced to prove a live issue or to support the prosecution’s case: see R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 47. However, as cautioned in Huebner Estate v. PR Senior Housing Management Ltd. (c.o.b. Retirement Concepts), [2021] B.C.J. No. 957, at para. 47 “narrative evidence may only be used to assist in the presentation of admissible evidence and it is not in itself relevant and material. Accordingly, narrative evidence is merely background information and is accorded no weight” [my emphasis]. This underscores the limitations of using contextual or narrative evidence.

[22] I accept Mr. Tokar’s submission that he has an important privacy interest in his personal health records. However, taking guidance from Bulakhtina, it is essential to note that merely having a privacy interest doesn’t automatically warrant a publication ban. The Sherman test demands more. In my perspective, for a trial to be protected by a publication ban due to medical information tendered as evidence, this evidence should play an integral role in the trial process and the matters under the Court’s consideration. Narrative evidence, even if it is linked to a protected privacy concern and provides context and background, should not be allowed to outweigh the public interest in court openness and transparency.

[23] Although the nature of Mr. Tokar's medical condition is not known, I would also note that in giving examples of the types of information that could give rise to a risk of personal dignity, the Supreme Court in Sherman, specifically referenced at para. 77 "stigmatized medical conditions" however did not reference all types of medical conditions.

[24] Mr. Tokar retains the choice to disclose his medical information voluntarily, offering it as narrative evidence, with appropriate limitations as set by the Court. However, I fail to see how a thorough examination of the case merits the mandatory disclosure of Mr. Tokar’s personal medical information. Respectfully, it remains unclear at this time how revealing this medical information is pivotal to the Court’s deliberations and thus necessitates admission. Given that Mr. Tokar’s narrative evidence will be given little, if any weight, Mr. Tokar may opt not to share his medical information, thereby avoiding potential privacy concerns.

[25] Moving to the question of what constitutes a “serious risk”, under the first stage of the Sherman test, the Supreme Court was clear that the serious risk requirement is a "high bar" and has to be real and well grounded in the evidence and not involve speculation: see, for example, Sherman, at paras. 3, 97 and 102.

[26] In terms of the relevant factors to be considered, Mr. Tokar’s medical condition isn’t publicly known. Mr. Tokar's submissions regarding the potential consequences of disclosing his medical condition lacked specific supporting evidence and the Court was not provided with any insights into Mr. Tokar’s personal life or professional standing. In his written submissions, he initially described the likelihood of repercussions as a “certainty” but later as a “possibility.”

[27] In the Sherman case, the Court emphasized that any potential personal embarrassment to an Applicant cannot override the open court principle, which is constitutionally protected under section 2(b) of the Charter of Rights and Freedoms: Sherman, at para. 39. Moreover, there hasn’t been a significant public or external interest in this case so far. Given the requested relief and the potential for interest to change as the trial progresses, a publication ban would not prevent observers in the courtroom or requests for transcripts; it would only halt further public dissemination of the information. Therefore, I am currently unconvinced that Mr. Tokar has sufficiently demonstrated the seriousness of the risk involved.

[28] For these reasons, I am not satisfied that the first step of the Sherman test has been met.

[29] Since all three prerequisites of the Sherman test must be satisfied, my determination that the Applicant hasn’t satisfied the first stage of the Sherman test disposes of the application and I do not need to consider the remaining steps. Nevertheless, I will briefly touch upon the third prerequisite in Sherman as it has influenced my decision. At this stage, the Court must weigh whether the benefits of an order limiting court openness outweigh its detrimental effects, including the negative impact on the open court principle: Sherman, at para. 106.

[30] During the balancing process of the third stage, the Court evaluates whether the information sought to be shielded from public access holds general public interest and whether it is peripheral or central to the judicial process. If the information is central to the case, the need to ensure that crucial and legally relevant information is presented in open court may take precedence: Sherman, at para. 106.

[31] The circumstances of this application differ from those contemplated in Sherman because, from an evidentiary standpoint, it appears that the medical information slated for submission isn’t central or necessarily relevant to the issues at hand in this case. I say this giving respect to Mr. Tokar’s submission that his medical information offers important contextual or background information.

[32] Now, turning to my analysis, while a non-publication order would safeguard the confidentiality of Mr. Tokar's medical information, I must reiterate, for the same reasons I’ve outlined in my analysis under the first step of Sherman, that considering the purpose for which Mr. Tokar wishes to use his medical information, the adverse effects on the open court principle are substantial. A restriction on the open court principle isn’t merely a minor inconvenience but should be viewed in the context of the vital role open courts play in ensuring the proper functioning of the justice system. In my perspective, it is imperative to contemplate the long-term ramifications of issuing a publication ban beyond the immediate effects on the Applicant. If a publication ban were to be granted in the circumstances of this case, it could potentially set a precedent where anyone could introduce narrative evidence regarding their medical information or condition, invoking similar protection. Such a shift in the legal landscape would represent a significant departure from the high threshold established by the Supreme Court in Sherman for what should be an exceptional order.

DISPOSITION

[33] For the reasons set out in this decision, the application for a common law publication ban is denied.

Released: September 12, 2023 Signed: Justice of the Peace M. Hudswell