CITATION: A.Z. v. Office of the Independent Police Review Director, 2023 ONSC 478

DIVISIONAL COURT FILE NO.: 650/22

DATE: 20230118

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: A.Z., Applicant

AND:

Office of the Independent Police Review Director, Respondent

BEFORE: Nishikawa J.

COUNSEL: Lwam Ghebrehariat, for the Applicant

No one appearing for the Respondent

HEARD at Toronto: January 13, 2023 (in writing)

ENDORSEMENT

Overview

[1] The Applicant has brought a notice of application for judicial review seeking review of a decision of the Respondent, the Office of the Independent Police Review Director (“OIPRD”), dated March 18, 2022 (the “Decision”). In the Decision, the OIPRD confirmed the finding of the Chief of Police of the Niagara Regional Police Service (“NRPS”) that the Applicant’s allegations of misconduct against certain officers were unsubstantiated. The OIPRD further found that while there were reasonable grounds to believe that two other respondent officers had committed misconduct, it was of a “less serious” nature than that term is used in the Police Services Act, R.S.O. 1990 c. P.15 (the “PSA”).

[2] The Applicant brings a preliminary motion for the following relief: (i) a publication ban restricting publication of any information identifying her from the court file without her written and revocable consent; (ii) an order that she be permitted to serve and file her material under a pseudonym, Jane Doe; [^1] and (iii) an order for the confidentiality and sealing of the documents in the court file that contain the name and identifying information of the Applicant.

[3] The OIPRD consents to the relief sought by the Applicant. Before the hearing of this motion, the Applicant delivered notice to the media, as required under Part V of the Superior Court’s Consolidated Practice Direction. No material has been received from any member of the media in response to the notice or in opposition to the motion.

[4] For the reasons that follow, the motion is granted on the terms detailed below.

Background

[5] In August 2020, the NRPS was called to the Applicant’s workplace to investigate an alleged sexual assault. The Applicant, who was working as an exotic dancer at the time, alleged that a customer sexually assaulted her and that she was then physically removed from the premises by an unlicensed security guard. In February 2021, an officer of the NRPS advised the Applicant that no charges would be laid and that the investigation into the sexual assault would be suspended. In May 2021, the NRPS advised the Applicant that no charges would be laid in relation to the investigation into the alleged physical assault by the security guard.

[6] The Applicant submitted a complaint to the OIPRD alleging that the investigating officers neglected their duties and requesting that the investigations be reopened. The officers who initially responded had not advised the Applicant how to secure forensic evidence or to obtain a Sexual Assault Evidence Kit, or of the availability of Victim Services. The Applicant submitted that the NRPS were dismissive of her allegations because they formed the view that it was a “deal gone bad.”

[7] In the Decision, the OIPRD stated that the Applicant’s requests to have the investigations reopened were beyond the scope of a PSA investigation and a request for review under s. 71 of the PSA.

Analysis

The Applicable Principles

[1] The open court principle is a “hallmark of a democratic society” which “has long been recognized as a cornerstone of the common law”: Vancouver Sun (Re), [2004] 2 S.C.R. 332, [2004] S.C.J. No. 41, 2004 SCC 43, at paras. 23-24. See also: A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567, at para. 11. The presumption that courts are open is fundamental to our justice system and is protected under s. 2(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 being Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11.

[2] The freedom of the press to report on judicial proceedings and the right of the public to receive information have also been found to be protected by the constitutional guarantee to freedom of expression: Re Vancouver Sun, 2003 SCC 43, [2004] 2 S.C.R. 332, at para. 26.

[8] The test applied when courts are asked to exercise their discretion to order that public access to a file or proceeding be restricted was recently reaffirmed by the Supreme Court of Canada in Sherman Estate v Donovan, 2021 SCC 25, at para. 38. In Sherman Estate, the Court recast the Dagenais/Mentuck test as follows:

(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.

[9] All three requirements must be met for a limit on court openness to be ordered.

[10] In this case, the Applicant has provided affidavit evidence detailing her concerns about her identity being made public in this proceeding. At the time of the incident, the Applicant was working as an exotic dancer. The Applicant used a stage name and has generally concealed the fact that she previously worked as an exotic dancer because of the stigma associated with such work. The Applicant wishes to have a career as an accountant and was pursuing post-secondary education at the time of the incident. She was also employed in the financial industry. After the incident, the Applicant received medical treatment for PTSD, as indicated in a psychiatrist’s report, and had to discontinue her studies and work. However, she continues to wish to pursue a career as an accountant and fears that the disclosure of her identity would negatively impact her prospects. The Applicant also expresses a fear of reprisal from her former employer from whom she experienced harassment, abuse and exploitation “even before the incident.” The Applicant states that she relocated to a different province because of this fear.

[11] The Applicant further deposes that publishing her identity in connection with this proceeding would cause her greater distress and negatively impact her mental health and that she would not likely proceed with this matter if she were not granted the ability to proceed anonymously.

Application

Court Openness Poses a Serious Risk to an Important Public Interest

[12] In H.(M.E.) v. Williams, 2012 ONCA 35, at para. 27, the Court of Appeal held 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 Court of Appeal went on to find that the party does not have to establish that they would not go to court absent the privacy protections requested: “[a]ccess 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.”: Ibid, at para. 29.

[13] In this case, without assessing the merits of the Applicant’s application for judicial review, there is a public interest in the Applicant’s ability to pursue the application, which engages issues of the conduct of a police investigation into sexual assault allegations, which are of a highly personal and intimate nature, without the fear of reprisal, psychological harm or negative employment consequences.

[14] In addition to the public interest in access to the courts, in my view, the privacy interest raised by the Applicant satisfies the public interest element. In Sherman Estate, at paras. 47-48, the Supreme Court held that “[p]ersonal concerns that relate to aspects of the privacy of an individual who is before the courts can coincide with a public interest in confidentiality.” The Supreme Court recognized that while an individual’s privacy is pre‑eminently important to that individual, “this Court has also long recognized that the protection of privacy is, in a variety of settings, in the interest of society as a whole.”

[15] In Sherman Estate, at para. 71, the Supreme Court further stated that “[v]iolations of privacy that cause a loss of control over fundamental personal information about oneself are damaging to dignity because they erode one’s ability to present aspects of oneself to others in a selective manner[.]” The Supreme Court held that “[p]rotecting individuals from the threat to their dignity that arises when information revealing core aspects of their private lives is disseminated through open court proceedings is an important public interest for the purposes of the test”: Sherman Estate, at para. 73.

[16] In Sherman Estate, the Supreme Court, at para. 77, recognized both subjection to sexual assault or harassment and the sensitivity of “stigmatized work” as personal information that, if exposed, could give risk to a serious risk. In Work Safe Twerk Safe v. Her Majesty the Queen in Right of Ontario, 2021 ONSC 1100, at paras. 28-29, Favreau J. (as she then was) found that given the stigma associated with stripping, public knowledge of a stripper’s identity makes them vulnerable to losing their employment in jobs other than stripping or in finding other work in the future. In so finding, Favreau J. stated that the evidence “accords with common sense given the stigma associated with working as a stripper and the easy access to information on the internet.”[^2]

[17] Moreover, while the Applicant’s case does not concern a statutory publication ban, in Canadian Newspapers Co. v. Canada (Attorney General) 1988 52 (SCC), [1988] 2 S.C.R. 122, at para. 15, the Supreme Court recognized that statutory publication bans in sexual assault cases serve the important goal of fostering “complaints by victims of sexual assault by protecting them from the trauma of wide-spread publication resulting in embarrassment and humiliation.”

[18] In this case, the Applicant’s privacy concerns raise an issue of public interest because they relate to her allegations of sexual assault while employed as an exotic dancer. These are core aspects of the Applicant’s private life that engage the Applicant’s dignity.

[19] Moreover, privacy as a public interest concern can be tied to the risk of psychological harm: Sherman Estate, at para. 54. The Applicant has provided evidence of the ongoing psychological impact of the incident on her and the potential that public disclosure of her work as an exotic dancer at the time could result in further emotional and mental distress.

[20] Accordingly, based on both the Applicant’s access to the court and the sensitivity of the personal information at issue, I am satisfied that court openness poses a serious risk to an important public interest.

The Order Sought is Necessary to Prevent This Serious Risk

[21] At the second stage, the court must consider whether reasonable alternative measures are available and restrict the order as far as possible without sacrificing the prevention of the risk: Sherman Estate, at para. 105.

[22] In Work Safe Twerk Safe, at para. 30, this court held that there was no reasonable alternative to an anonymization order because without such an order, the evidence available in the proceeding would be limited to evidence from strippers who were willing to identify themselves. In this case as well, anonymization is necessary to enable the Applicant, who is the only complainant, to come forward.

[23] Similarly, there is no reasonable alternative to an order restricting publication of the Applicant’s identity or identifying information.

[24] The Applicant also seeks an order “for the confidentiality and sealing of documents in this court file that contain the name and identifying information of the Applicant (namely, the Order, consent for the order, the draft Order and Notice of Motion)”. In my view, such an order would not be consistent with minimal impairment of the open court principle in that it would be overly broad and preclude access to the basis for the granting of this motion. As a result, the terms below will require that the motion material be re-filed with the court, anonymized and with any identifying information redacted.

The Benefits Outweigh the Negative Effects

[25] In my view, the benefits of an order protecting the Applicant’s identity outweigh the negative effects. In Canadian Newspapers Co., the Supreme Court held that the harm caused by a publication ban protecting the identity of an individual was minimal because media are still able to be present at a hearing and to report all other facts in the case. The same applies here. An order protecting the Applicant from disclosure of her identity would avoid the risks raised by the Applicant and would have minimal negative effects. The media would be able to be present at the hearing and report all other facts in the case. The Applicant’s identity and identifying information is a “sliver of information” of relative insignificance: A.B. v. Bragg Communications, at para. 28.

Conclusion

[26] Based on the foregoing analysis, the three parts of the Sherman Estate test have been met and the motion for a publication ban and to anonymize the Applicant in documents filed with the court is granted. The Applicant is to be identified by the initials, A.Z.

[27] The material submitted to date, as identified above, is sealed. The Applicant shall re-file the notice of application and motion materials (notice of motion, affidavit and factum) in anonymized and redacted form, removing any information identifying the Applicant. It is not necessary to re-file the consent and draft order.

[28] Counsel may submit to my attention a revised draft order consistent with the terms of this endorsement.

[29] No costs of the motion were sought and none are ordered.

Nishikawa J.

Date: January 18, 2023

[^1]: While the Applicant seeks to file material under a “pseudonym,” the objective of protecting the Applicant’s identity and identifying information would be served by an order authorizing anonymization.

[^2]: In view of this court’s findings in Work Safe Twerk Safe, I find it unnecessary to consider the articles attached to the Applicant’s affidavit and make no finding as to their admissibility on this motion.