SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

COURT FILE NOS.: 5838/14; 5839/14; 5840/14

DATE: 2014-03-16

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 45(8) OF THE CHILD AND FAMILY SERVICES ACT

RE: Chatham-Kent Children’s Services[^1], Respondent on the appeal/Responding party on this motion

AND:

A.H. and E.H., Appellants

J.S. and S.T., Appellants

E.K., Appellant

R.(H.)K., Appellant/Responding party on this motion

BEFORE: TEMPLETON J.

COUNSEL:
L. Hodgson-Harris, Counsel, for CKCS

G. Wong, Counsel from the O.C.L. for the minor Respondent R. (H.) K.

J. Long, Counsel from the O.C.L. for the children

I. Fischer and A. Lazier, Counsel for the media

HEARD: March 11 2014

ENDORSEMENT

re: MOTION FOR variation of the order of the court dated March 5 2014

[1] The media has brought a motion to this Court for a variation of my order dated March 5 2014 excluding access to the proceedings.

[2] This motion is heard within the context of an appeal by the parents of the subject children (and one minor parent) with respect to an order made on February 13 2014 in the Ontario Court of Justice that requires the children to be returned to Quebec. The appeal of that order was scheduled to be heard on March 5 2014 but for emergency reasons directly concerning the safety, protection and best interests of the children and which required the court’s immediate attention and intervention, the appeal was adjourned to April 4 2014.

Background

[3] For the sake of continued substantive and administrative clarity in this case, the following motions have been filed in the Ontario Superior Court of Justice since the decision of Mr. Justice Fuerth on February 13 2014:

(a) Motions returnable on February 25th 2014:

(i) A motion by the appellants J.S. and S.T. for an order varying inter alia the provisions of the stay granted in the Ontario Court of Justice on February 3 2014;

(ii) A motion by the appellants A.H. and E.H. for an order varying inter alia the provisions of the stay granted in the Ontario Court of Justice on February 3 2014;

(iii) A motion by the appellants E.K. and R.(H.)K. for an order varying inter alia the provisions of the stay granted in the Ontario Court of Justice on February 3 2014; and

(iv) A motion by the respondent C.K.C.S. for an order inter alia dismissing the above-noted motions and expediting the hearing of the appeal.

(b) Motions returnable on March 5 2014:

(i) A motion by the appellants J.S. and S.T. for an order inter alia permitting the admission of further and other evidence at the hearing of the appeal;

(ii) A motion by the appellants A.H. and E.H. for an order inter alia permitting the admission of further and other evidence at the hearing of the appeal; and

(iv) A motion by the appellants E.K. and R.(H.)K. for an order, inter alia, permitting the admission of further and other evidence at the hearing of the appeal.

[4] On February 25th 2014 all motions returnable on that date were dismissed as abandoned by counsel given the early availability of both counsel and the court to hear the appeal, namely, seven days hence. The court continued the conditions imposed by Mr. Justice Fuerth in his order of February 13 2014 with respect to, and in particular, non-removal of the children from the Municipality of Chatham-Kent.

[5] On March 5th 2014, the date set for the hearing of the appeal, I considered five oral motions that were brought without notice on the basis of urgency:

(i) An oral motion for an immediate in camera hearing under the Child and Family Services Act R.S.O. 1990, c. C.11, as am.[^2];

(ii) An oral motion by the media for time to consult with counsel in response to the request for an in camera hearing prior to the commencement of the hearing;

(iii) An oral motion by the CKCS for an order pursuant to s. 51(2) (d) of the Act that the children be placed in the care of the society during the adjournment;

(iv) An oral motion for the removal of Julie Lee as counsel for the appellants J.S., S.T., A.H., E.H. and E.K; and

(v) An oral motion for the immediate appointment of counsel for all of the children who are the subject of the appeal.

[6] Prior to the hearing on March 5th 2014, I learned that the appellants and their children had apparently disappeared during the prior two days; that contrary to the order of Justice Fuerth on February 13th 2014 and my order on February 25th 2014 the appellants had either left voluntarily or had been removed from the jurisdiction; and that the location of all of the children was unknown or uncertain.

[7] I met with all counsel for all of the parties to this litigation who agreed that given the apparent disappearance of the children, the hearing of an emergency motion by the CKCA in accordance with the provisions of the Child and Family Services Act would be required and should be heard in camera.

[8] Unlike the prior conduct of the appellants in Quebec (when two of the appellants appeared before the court and provided an indication with respect to where the children were located after having been removed from the jurisdiction of that court), in this instance, the appellants and the children had disappeared without notice or explanation even to their own counsel. No one from the religious community or otherwise was present to provide any information to the court. In sum, the children had vanished and were missing.

[9] The pending motion for interim relief was therefore clearly urgent and required the court’s immediate consideration and intervention. The evidence to be called on the motion concerned the steps taken by all of the authorities involved to that point in time to locate the children; the orders and steps further needed to ensure the protection and safety of the missing children including their return to the Municipality of Chatham-Kent if and when found. To that point in time, no order existed that would allow the authorities to act appropriately in this situation.

[10] Because of the immediate and urgent circumstances bearing directly upon the physical and emotional safety of the children, the oral motion by the media for a delay of the hearing so that they could consult with counsel regarding the exclusion order was denied and the motion by the CKCS was ordered to be conducted in camera. I confirmed in open court that the order excluding the media was made in the exercise of my discretion pursuant to s. 45 (7) (b). I also confirmed that the exclusion order did not apply to the hearing of the appeal and was limited in scope to the motion before the court. I made those orders with reasons to follow.

[11] On hearing the testimony elicited by the CKCS, the request that the children be immediately placed in the care of the society was granted. A less intrusive order was not available. In addition, I ordered police assistance in the execution of that order. The formal orders were then prepared at the conclusion of the hearing and signed by me to allow law enforcement agencies to begin the process of searching for the missing children both nationally and internationally and to take the children into the care of the society when found.

[12] In addition, I granted an order removing Ms. Lee as counsel of record for the adult appellants given the breakdown of their solicitor/client relationship and signed an order requesting the appointment of a lawyer by the Office of the Children’s Lawyer for each of the children who are the subject of the appeal.

[13] As I have indicated, the hearing of the appeal was adjourned to April 4 2014. In addition, the motions by the appellants returnable on March 5 2014 were adjourned to the same date.

[14] On March 6 2014 I issued an Endorsement containing the reasons for the exclusion order. This Endorsement supplements those reasons if and as necessary.

Subsequent Events

[15] On March 6 2014, the Registrar in Chatham received correspondence dated the same day from Mr. Paul Schabas. The writer indicated that his law firm represented a number of media outlets. Enclosed with the letter was a motion for an order changing, varying or setting aside the exclusion order and granting public access to the transcript of the apprehension hearing and all motion materials filed in relation to the apprehension hearing.[^3] No affidavit materials were enclosed, served or filed at that time in support of the motion.

[16] On March 7 2014 Regional Senior Justice Heeney responded to the letter. In that letter, Mr. Justice Heeney confirmed inter alia that if the clients of Mr. Schabas were dissatisfied with the exclusion order, Mr. Schabas was at liberty to launch an appeal to the appropriate court.[^4] He also indicated that I, Justice Templeton, would “entertain submissions that access to the transcript of the proceedings be granted if and when the children are apprehended and safely in the care of the society”[^5].

[17] On or about Saturday March 8 2014 six of the fourteen minor children who had disappeared were located in Trinidad were taken into the care of the society upon their arrival back in Canada from Trinidad.

[18] On or about Sunday March 9 2014 two more of the fourteen minor children who had disappeared were found in Calgary and were taken into the care of the society upon their arrival in Toronto from Calgary.

[19] On March 10 2014 I received a letter dated the same day from Mr. Schabas requesting that I “reconsider” releasing the transcript and any materials filed on the apprehension motion to the media in light of the fact that all of the children are now either in the care of child welfare authorities or outside the country[^6].

[20] With respect, it was difficult to understand the position of counsel that a hearing be held for the purpose of reconsidering a decision given that no decision had ever been made concerning the transcript of the proceedings.

[21] In fact I had indicated and continued to be willing to entertain a motion that turns on the sole question of whether the media ought to be allowed access to a transcript of the in camera proceeding once the children are apprehended and safely in the care of the society.

[22] On March 10 2014, I sent a letter to all counsel confirming that I would hear the media’s motion the following day, March 11 2014 by teleconference on the record[^7].

The Motion

[23] At the outset of the motion, I indicated to counsel that I was not prepared to hear an appeal of my exclusion order.

[24] The only issue to be determined on this motion is whether the order sought with respect to access by the media to the transcript and materials filed on March 5 2014 ought to be granted.

[25] On March 11 2014 I heard submissions from counsel for the media and counsel for the society, counsel for the minor parent who is an appellant and counsel from the Office of the Children’s Lawyer[^8].

[26] The motion requesting access to the transcript of the in camera hearing and all motion materials in relation to the apprehension motion was forcefully argued by counsel for the media.

[27] In summary, it is the position of the media that the exclusion order has created a gap of knowledge for the public; that the doctrine of court openness as set out in Dagenais[^9] requires and supports the request for the order sought; that circumstances have changed since the exclusion order in that most of the children who disappeared have now been found and are safely under the protection of the CKCS; that the children who have not yet been found have been located and are out of the country; and that an appropriate exercise of the discretion pursuant to the test defined in Dagenais/Mentuck[^10] would result in the orders sought.

[28] The motion is equally strenuously opposed however by the parties to the proceeding, namely, the minor parent who is an appellant and represented by counsel, the Office of the Children's Lawyer, which represents the children and the CKCS who is the respondent on the appeal.

[29] It is the position of all of the parties in this proceeding that the paramount purpose of the Act must be respected and applied; that there has been an insufficient change in the factual circumstances since the order in that six children are still missing and are not yet in the care and protection of the society; that this decision must be made in the context of the rights of the children to privacy; that when children are missing and in need of protection, the principle of openness is protected by the creation and existence of a court record but the dissemination of the evidence into the public domain places the children at further risk in these particular circumstances; that since the order for non-publication of the identity has been breached by way of a tweeted message that included the name of one of the children, there are concerns regarding the media’s compliance with the court order.

Analysis

[30] I agree with counsel for the media that the Dagenais/Mentuck test applies in this case.

[31] It is clear law that restrictions on the open court principle and freedom of the press in relation to judicial proceedings can only be ordered where the party seeking such a restriction establishes through convincing evidence that

(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 interest 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.

[32] In 2005, the Supreme Court of Canada considered the case of Toronto Star Newspapers v. Ontario[^11] in which the Crown appealed an order of the Ontario Court of Appeal that had quashed an order sealing search warrants, the information used to obtain the warrants and the related documents. The appeal to the Supreme Court was dismissed.

[33] On behalf of the majority, the Honourable Mr. Justice Fish wrote as follows:

In any constitutional climate, the administration of justice thrives on exposure to light — and withers under a cloud of secrecy.

That lesson of history is enshrined in the Canadian Charter of Rights and Freedoms. Section 2(b) of the Charter guarantees, in more comprehensive terms, freedom of communication and freedom of expression. These fundamental and closely related freedoms both depend for their vitality on public access to information of public interest. What goes on in the courts ought therefore to be, and manifestly is, of central concern to Canadians.

The freedoms I have mentioned, though fundamental, are by no means absolute. Under certain conditions, public access to confidential or sensitive information related to court proceedings will endanger and not protect the integrity of our system of justice. A temporary shield will in some cases suffice; in others, permanent protection is warranted.

Competing claims related to court proceedings necessarily involve an exercise in judicial discretion. It is now well established that court proceedings are presumptively “open” in Canada. Public access will be barred only when the appropriate court, in the exercise of its discretion, concludes that disclosure would subvert the ends of justice or unduly impair its proper administration.

This criterion has come to be known as the Dagenais/Mentuck test, after the decisions of this Court in which the governing principles were established and refined.

[34] In my opinion, freedom of communication and freedom of expression are fundamental to the safeguarding of both democracy and accountability for and on behalf of all Canadians including all participants in the administration of justice. These freedoms “reassure the public that all persons regardless of race, colour or creed are equal before the law and that there is no arbitrary action or abuse of power”[^12].

[35] I also entirely agree with the opinion of the court in M. (Y.) v. Children’s Aid Society[^13] that “justice must not only be done but must also appear to be done. The courts, the administration of justice, public bodies and agencies, all have been the subject of scrutiny by the media. Agencies such as the ones involved here have great power and can exercise certain controls over the lives of citizens. The public ought to feel comfortable that such authority is being handled properly. Surely, personnel of these agencies ought not to fear reasonable public scrutiny of their operations.”

[36] The courts have repeatedly found that the open court principle, permitting public access to information about the courts, is deeply rooted in the Canadian system of justice.

[37] But these freedoms are not absolute.

[38] In the case before me, the question is therefore whether public access to sensitive information involving children who are vulnerable and missing and have been found to require the protection of a government agency under the CFSA will endanger and fail to protect the integrity of our justice system.

[39] In other words, have the parties to the litigation shown that without the protective or limiting orders they seek, there is a serious risk to the proper administration of justice?

[40] The significance of the vulnerability of children in the analysis was considered by the Supreme Court of Canada just two years ago in A.B. by her Litigation Guardian and Bragg Communications Inc.[^16].

[41] The case before me is not a criminal matter; it is not a civil matter; it is not a family law matter. And this is not a case about a religious community. This is a matter that concerns only the children of the appellants.

[42] In my opinion, in certain circumstances, the protection of a vulnerable child and that child’s privacy may well go beyond merely the name of the child in protection proceedings.

[43] Because of the best interests test, allegations about the conduct or attitude of adults toward a child cannot be separated and considered in isolation from the child.

[44] In child protection matters, therefore, the need to shield a vulnerable child rests not only on the child’s chronological age but also and perhaps more significantly, the factual circumstances in which the child lives or has been placed.

[45] The paramount purpose of the CFSA is to promote the best interests, protection and well being of children.

[46] The Supreme Court of Canada has also recognized that children are “highly vulnerable members of our society...”.[^17]

[47] But I am also of the view, that the infringement, if any, must be limited as soon and as far as possible in order to ensure the accountability of the state and the integrity of the administration of justice.

[48] Having considered the evidence elicited from the witnesses on the motion, reviewed the transcript, considered the submissions of counsel and reviewed the law, I find that the temporary shield referred to by the Supreme Court of Canada is no longer warranted with respect to those children who are now safely in the care of the society.

[49] I am not so satisfied, however, with respect to the children who have yet to be located.

[50] In all of the circumstances therefore an order shall issue as set out below.

[51] However, I would like to also caution the media as follows. Rights and freedoms are inextricably linked with responsibility.

[52] The children before me have already been identified not by name in the public domain but by who they are.

Conclusion

[53] A redacted copy of the transcript of the evidence heard on March 5 2014 will be provided to counsel for the media on or before Wednesday March 19 2014. The transcript will be redacted with respect to any evidence concerning the identity of all of the children and all evidence with respect to those children who have not yet been found.

[54] To assist the media, a copy of the redacted transcript will also be made available at the Courthouse in London and at the Courthouse in Chatham.

[55] No copies of the transcript are to be made. Members of the media are to be provided with as much time and opportunity as they need to read the transcript and make such notes as they require. No exhibits were filed on the motion.

[56] The publication ban pursuant to s. 48(8) of the CFSA remains in full force and effect.

[57] No costs are payable by any of the parties.

[58] An order will issue in accordance with these reasons.

“Justice Lynda Templeton”

Justice Lynda Templeton

Date: March 16 2014

[^1]: the ‘CKCS’
[^2]: the ‘Act’
[^3]: A copy of the letter dated March 6 2014 and enclosure is attached hereto and marked Schedule ‘A’.
[^4]: Contrary to a report published on March 11 2014, at no time did Mr. Justice Heeney decide not to hear an appeal of the exclusion order.
[^5]: A copy of the letter dated March 7 2014 and enclosure is attached hereto and marked Schedule ‘B’.
[^6]: A copy of the letter dated March 10 2014 is attached hereto and marked Schedule ‘C’.
[^7]: A copy of the letter dated March 7 2014 from the court is attached hereto and marked Schedule ‘D’.
[^8]: Note regarding the media’s objection to lack of notice and opportunity to make representations on the exclusion order.
[^9]: Dagenais and Canadian Broadcasting Corp. [1994] 3 S.C.R. 835
[^10]: R. v. Mentuck, 2001 SCC 76
[^11]: [2005] SCC 41
[^12]: Canadian Newspapers Co. Ltd. v. A.-G. Can. (1985)
[^13]: 65 D.L.R. (4th) 427
[^16]: 2012 SCC 46
[^17]: K.L.W. v. Winnipeg Child and Family Services et al., 2000 SCC 48