R. v. Hosannah, 2015 ONSC 380

ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R. v. Hosannah, 2015 ONSC 380

COURT FILE NO.: CRIMJ(P) 161/13

DATE: 2015-01-23

B E T W E E N:

Her Majesty the Queen

Scott Latimer, Counsel for Her Majesty the Queen

Respondent

• and -

Sean Hosannah and Maria Hosannah

Stephen Proudlove, Counsel for Sean Hosannah

Margaret Osadet, Counsel for Maria Hosannah

Respondents

• and -

Toronto Star Newspapers Limited

Daniel Stern, Counsel for Toronto Star Newspapers Limited

Applicant

• and -

Justice for Children and Youth

Emily McKernan, Counsel for Justice for Children and Youth

Amicus Curiae

HEARD: January 8, 2015

REASONS FOR DECISION

(Toronto Star Application to Vary Scope of Publication Ban)

Sproat, J.

Introduction

1Sean and Maria Hosannah were convicted of manslaughter by failing to provide the necessaries of life to their daughter Matinah. During the trial the Crown sought, the defence supported and I granted an order under s. 486.5 of the Criminal Code prohibiting the publication of the names of the surviving siblings or other information that would tend to identify them. This would include the surname Hosannah.

2In seeking the partial publication ban, the stated concern of Mr. Taylor on behalf of the Crown was that the stigma of the parent’s conviction would otherwise follow the children for the rest of their lives given the permanence of electronic records. This was a particular concern given their uncommon surname.

3The Toronto Star applied to change, vary or set aside the publication ban. By letter dated November 18, 2014, Mr. Latimer on behalf of the Crown took the position that the publication ban should be narrowed and prohibit only the publication of the names of the surviving siblings. This would allow publication of the names of the offenders and the victim. The Toronto Star agreed the publication ban should be so narrowed.

4I appointed Justice for Children and Youth (“JFCY”) as amicus curiae so that the Court would have the benefit of submissions in support of the original publication ban. JFCY is a specialty legal clinic funded by Legal Aid Ontario. It provides legal representation to youth ages 17 and under in relation to matters including youth justice, human rights, privacy, and constitutional and mental health law.

The Evidence

5JFCY, without objection, filed an affidavit indicating that a Canada 411 search revealed that only a small number of individuals in Canada share the same surname as the offenders.

6The Toronto Star filed an affidavit indicating that Canada 411 does not record cell phone numbers, and has other exclusions, such that it is not possible to reliably estimate the number of persons in Canada who share this surname.

7The Toronto Star affidavit also cited the fact that articles are routinely published naming parents charged or convicted in the death of their children and naming the deceased child. The articles did not name any surviving siblings. Examples given included six such cases reported in Toronto newspapers, in 2013-2014 alone, in which the parents had uncommon surnames such as Batstone, Adotey and Doodhnaught.

The Law

8The Dagenais-Mentuck test, (Dagenais v. Canada Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835 and R. v. Mentuck, 2001 SCC 76) requires that a party seeking to restrict access to court proceedings must establish that:

32 […] a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonable 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. (Mentuck)

9With respect to the first requirement, that the order be necessary, Mentuck states:

34. […] One required element is that the risk in question be a serious one… That is, it must be a risk the reality of which is well-grounded in the evidence. It must also be a risk that poses a serious threat to the proper administration of justice. In other words, it is a serious danger sought to be avoided that is required, not a substantial benefit or advantage to the administration of justice sought to be obtained.

10In M.E.H. v. Williams 2012 ONCA 35, [2012] O.J. No. 525 (C.A.) Justice Doherty made the point that:

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 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?

11In A.B. (Litigation Guardian of) v. Bragg Communications Inc., 2012 SCC 46, 2012 S.C.C. 46, an unknown person posted a Facebook profile using a photo of 15 year old A.B. and a slightly modified version of her name. Also posted were unflattering references to her appearance along with sexually explicit references. A.B. sought permission to proceed anonymously with a court application to obtain the IP address of the person who made the posting in order to identify defendants for a defamation claim.

12The Supreme Court allowed her to proceed anonymously. While there was no specific evidence of harm to A.B. the Court stated:

20. It is logical to infer that children may suffer harm through cyberbullying. […]

13The Court also concluded it was logical to infer that without a grant of anonymity bullied children may not pursue legal action. Set against the interest in allowing children to protect themselves from bullying was the harm to the open court principle. In this context the Court concluded that the identity of A.B. was relatively insignificant (a “sliver of information” as stated in N. (F.) Re, [2000] 15 C.R. 880 (S.C.C.)) and constituted only a “minimal” impairment of the open court principle (para. 28).

14In re S(FC) (a child) [2004] UKHL 47, the House of Lords considered a case strikingly similar to ours. A child died of acute salt poisoning and his mother was charged with murder. An application was made by the guardian of C.S., the eight-year-old surviving sibling, for an order prohibiting publication of the name of the mother and the deceased child in order to shield C.S. from the glare of publicity. A psychiatric report was filed indicating that C.S. was functioning well and in a therapeutic program. There was, however, a concern that if news of the charges became public he would have to cope with the curiousity of his peers and possible bullying and teasing. The report described C.S. as vulnerable and noted that due to the bereavement his risk of developing a depressive disorder was increased five-fold. Further, the additional stress of coping with curiousity and possible teasing and bullying would, “significantly increase the possibility of his developing a psychiatric disorder”.

15The House of Lords analysis sought to balance respect for the open court principle against the privacy rights of a vulnerable child. While the legislative scheme was different many of the observations made are, in my opinion, apt and persuasive.

16Lord Steyn quoted the lower court judge who observed “that these will be dreadfully painful times for the child” and added “Everybody will sympathize with that observation”. This applies with full force to our case.

17Lord Steyn noted that, while there was a long tradition of statutory provisions protecting the privacy of children directly involved in criminal proceedings, there was no history of extending that protection to non-parties. Lord Steyn, referring to extending protection to non-parties, stated:

The verdict of experience appears to be that such a development is a step too far.

18Lord Steyn also addressed a number of the practical implications of courts entertaining applications to restrict publication in this manner:

a. it would burden newspapers with an ever wider spectrum of costly proceedings. (para. 32).

b. it would have a chilling effect, particularly on smaller newspapers. (para. 36).

c. … a report of a sensational trial without revealing the identity of the defendant would be “disembodied”, and

[…] Certainly readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer (para. 34).

d. the process of piling exception upon exception to the principle of open justice would be encouraged and gain momentum (para. 33).

ANALYSIS

19The first step in the Dagenais-Mentuck analysis is to determine if a publication ban is necessary to prevent a serious risk to the proper administration of justice or, as stated in M.E.H., a public interest.

20I agree with JFCY that section 45 of the Child and Family Services Act (“the CFSA”), which effectively prohibits the naming of persons involved in child protection proceedings, recognizes that publicity concerning family conflict (which often involves allegations of criminal behaviour) can be harmful to children. Similarly the Youth Criminal Justice Act (“YCJA”), sections 110 and 111, prohibit naming young persons charged or children or young persons who are victims of, or a witness in connection with, an offence alleged to have been committed by a young person.

21I also agree that there is good authority for the proposition that the surviving siblings of a homicide victim are properly characterized as “victims”. For example, they would fall within the class of persons entitled to provide a victim impact statement at a sentencing hearing (R. v. Duffus, 2000 CanLII 22831 (ON SC), [2000] O.J. No. 4850 (S.C.J.))

22I accept that protecting vulnerable child victims from harm to their health and well-being is a “public interest” for present purposes.

23I now turn to whether there is a serious risk to the public interest that can only be addressed by a publication ban. In our case, the reality is that the surviving siblings have suffered the death of their sibling and are now, or will become, aware that both their parents were criminally responsible for the death. A significant number of people must already know the identities of all concerned. This no doubt includes some family, friends, neighbours, teachers and health care professionals. The death of a sister, particularly given the culpability of the parents, will no doubt cause “dreadfully painful times” for the surviving siblings. That is the baseline. Nothing a publication ban can do will change that.

24The incremental harm that might result to the surviving siblings depends primarily on a number of assumptions:

a. that a broader circle in the community now or in the future connect the surviving children to the offenders as a result of publicity concerning the criminal trial; and

b. in that event, those persons respond by bullying or discriminating against the surviving siblings as opposed to being neutral or supportive.

25I acknowledge there is a further argument that the mere fact of publicity concerning the criminal case may add to the distress of the surviving siblings even if no one explicitly makes the connection to them or discriminates or disadvantages them. That concern, however, takes us even further into the realm of possibility and speculation.

26The routine granting of publication bans on the identity of adult accused persons and offenders would be a radical change in the law. If a publication ban is necessary in this case it would be necessary in any case in which a heinous crime was committed by a person with children and an uncommon surname.

27The public policy giving rise to the “necessity” of publication bans, related to children and families involved in child protection hearings and young offenders in the criminal justice system, was recognized long ago and enshrined in legislation. There does not appear to be any legislative initiative or reform proposal suggesting a need to extend similar protection to persons not party to the legal proceedings.

28Far from it being “necessary” to radically extend publication bans in a significant number of cases to shield the identity of accused persons, as a means of shielding non-parties, there appears to be a general consensus that to do so would be, in the words of Lord Steyn, “a step too far”. Put differently, the Ontario legislature and Parliament have both addressed the extent to which the open court principle should be compromised to protect vulnerable children. The legislators could have, but has not seen fit to extend the protection to non-parties.

29JFCY placed great reliance on the Bragg decision of the Supreme Court of Canada. There are, however, a number of important distinguishing factors in that case. Absent a publication ban, there was absolute certainty A.B. would be identified and associated with the sexualized cyberbullying that had taken place. In our case, the most that can be said is that, given the uncommon surname, there is a real risk that persons in the community, now or in the future, will make the connection that the surviving siblings are the children of the offenders.

30Further, and perhaps most importantly in terms of necessity, in Bragg the Court accepted:

27. … that the right to protection will disappear for most children without the further protection of anonymity.

31Obviously the conclusion that absent anonymity, most children would effectively be denied access to the courts provides strong support for the necessity of a publication ban. This is, however, not relevant to our situation.

32As such, I find that a publication ban that would be imposed to guard against the possibility of future harm, and which can only address any incremental harm to the surviving siblings, cannot be considered “necessary” to prevent a serious risk to the public interest in protecting vulnerable children within the meaning of the Dagenais-Mentuck test.

33I will, however, also address the second part of the Dagenais-Mentuck test which is balancing the salutary and deleterious effects of the proposed publication ban.

34Turning first to the salutary effects. As discussed, I agree that the provisions of the CFSA and YCJA reflect the legislative judgment that publicity concerning child protection and criminal proceedings can be harmful to children. This accords with common sense and experience. In my opinion, that the risk of such harm exists is “objectively discernable” and it is “logical to infer such harm” as discussed in Bragg.

35JFCY placed considerable reliance on the fact that the uncommon surname of the offenders increased the likelihood the children would be associated with them. As discussed, there is no reliable information as to just how uncommon the surname is. In any event, members of the public are unlikely to have any quantifiable idea of just how uncommon any particular name is. The Greater Toronto Area, with a population of 6,000,000, has many families with uncommon surnames. This militates against the assumption that individuals sharing uncommon names are directly related. As the risk of the association through surname declines, so too does the salutary benefits of a ban.

36It remains, however, that there is a risk of the surviving children being associated with the offenders, and the possibility of this exacerbating the distress or otherwise prejudicing the surviving siblings. As such, a ban would have a salutary effect subject to the qualifications noted.

37Turning next to the deleterious effects. I agree with those identified by Lord Steyn, being:

a. burdening newspapers with costly applications

b. the chilling effect, particularly on smaller newspapers

c. the fact that a trial without the name of the accused would be disembodied and less likely to be reported and the subject of informed debate.

d. the process of piling exception upon exception to the open court principle would be encouraged.

38I also agree with the following additional points made by Mr. Stern on behalf of the Toronto Star:

a. A publication ban over the names of convicted accused runs the risk of unintentionally encouraging speculation and suspicion directed at innocent third parties. While accurate reporting about a case enhances public debate, speculation and gossip hinder it.

b. … full and accurate reporting […] reassures the public that no party is given special treatment, advantage, or disadvantage by reason of their social status or connections.

39This type of speculation and distrust has a corrosive effect on the administration of justice. JFCY put forward the alternative position that the first names of the offenders but not their surnames be published. In my opinion that would do little to mitigate the deleterious effects just discussed.

40There would also be fertile ground for experts and litigation over just how common or uncommon a surname is; over what geographic area names should be compared; and to what extent should similar sounding but differently spelled surnames be considered. As a practical matter litigating publication bans, particularly if experts are required, will tend to mean that the affluent are much more likely to be able to shelter under publication bans.

41Further, as Justice Cory explained in Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20 (SCC), [1989] 2 S.C.R. 1326 at para. 85, citizens cannot regularly attend trials and so depend upon the media for information. In my opinion, most citizens would have minimal interest in the name of a victim, such as in Bragg, who is asserting rights in a civil proceeding. In that context I agree that characterizing the identity of a party as a “sliver of information” and a minimal impairment of the open court principle is appropriate. In contrast, however, I believe most citizens would be extremely interested in learning the names of adults convicted of criminal offences and particularly homicides. In my view denying members of the public access to the names of adult offenders is a significant deleterious consequence.

42Taking into account the factors noted and in light of the authorities cited, my conclusion is that the deleterious consequence of the ban sought far outweighs the salutary effects.

Conclusion

43I thank Mr. Stern for his helpful submissions. I also thank Ms. McKernan for her submissions which were valuable in providing a perspective the Court would otherwise have lacked. I also thank Mr. Latimer for the helpful position he took regarding narrowing the publication ban.

44The publication ban is, therefore, varied to prohibit only the publication of the names of any surviving children of the offenders in any publication related to this criminal case.

Sproat, J.