CITATION: H.A. v. S.M., 2017 ONSC 5650
COURT FILE NO.: CV-14-20587
DATE: 20170922
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
H.A., M.D., N.A. by her litigation guardian, H.A., M.A. by his litigation guardian, H.A. and N.J.A. by her litigation guardian, H.A.
Plaintiffs
– and –
S.M., Chief of Police Al Frederick, Windsor Police Services Board, Police Officer John Doe (Badge #539), Police Officer Jane Doe and Police Officer John Doe
Defendants
– and –
Post Media Network Inc. (o/a Windsor Star), Canadian Broadcasting Corporation, and CTV, A Division of Bell Media Inc.
Intervenors/Respondents
Asha James, for the Plaintiffs
Kristen Dearlove, for the Defendants Chief of Police Al Frederick, Windsor Police Services Board, Police Officer John Doe (Badge #539), Police Officer Jane Doe and Police Officer John Doe
S.M., acting in person
David Robins, for the Intervenors/Respondents, Postmedia Network Inc. (o/a Windsor Star), Canadian Broadcasting Corporation and CTV News
HEARD: September 13, 2017
REASONS ON MOTION
Munroe J.:
[1] “Democracy Dies in Darkness” is the masthead motto of the American newspaper, The Washington Post. Our Supreme Court has expressed identical tenets in the context of the openness of our courts.
In any constitutional climate, the administration of justice thrives on exposure to light – and withers under a cloud of secrecy.
Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188, at para. 1.
Openness is necessary to maintain the independence and impartiality of courts. It is integral to public confidence in the justice system and the public’s understanding of the administration of justice.
Re Vancouver Sun, 2004 SCC 43, [2004] 2 S.C.R. 332, at para. 25
The concept of open courts is deeply embedded in the common law tradition. The principle was described in the early English case of Scott v. Scott, [1913] A.C. 419 (H.L.). A passage from the reasons given by Lord Shaw of Dunfermline is worthy of reproduction for its precise articulation of what underlies the principle. He stated at p. 477:
… “… Where there is no publicity there is no justice.” “Publicity is the very soul of justice….”
Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1996 CanLII 184 (SCC), [1996] 3 S.C.R. 480, at para. 21.
[2] This is not to suggest that the openness principle is absolute. It is not. But the principle is now well-established - court proceedings are presumptively “open” in Canada subject only to when it is shown that “disclosure would subvert the ends of justice or unduly impair its proper administration.” Toronto Star, at para. 4. [Emphasis in original.]
[3] It is in this legal setting that certain defendants in this civil case now seek to close portions of the case from the public. The case itself is not wholly personal or devoid of any public interest. It arises out of the acquittal of a man in a criminal sexual assault case. The exonerated accused and his family brought this civil case against the complainant and the police for various causes of action including negligent investigation by the police. The police defendants are the parties who brought this motion to close certain portions of the case from public view.
[4] The police defendants originally moved for a blanket exclusion of the public - seal the court file and close the court to the public. Alternatively, these defendants suggested lesser relief. By the time of oral submissions, the police defendants significantly reduced the scope of the relief sought to the sealing of the materials to be filed in support of their motion for summary judgment pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The police defendants also sought, in essence, the continuation of the criminal case publication ban.
[5] S.M., formerly the complainant in the related criminal case and a defendant in this civil case (“defendant/complainant”), although given notice, did not respond in writing or appear at the hearing. The plaintiffs essentially stayed neutral throughout. The media sought intervenor status, agreed to the continuation of the criminal case publication ban, and otherwise contested the motion.
[6] The issues to be decided are as follows:
Should the media be granted intervenor status?
Is the criminal case publication ban pursuant to s. 486.4(1) still in force?
Should leave be granted for the use of initials in pleadings filed in this case?
Should the Rule 20 materials be sealed?
[7] Each will be reviewed.
1. Should the media be granted intervenor status?
[8] Post Media Network Inc. (o/a Windsor Star), Canadian Broadcasting Corporation, and CTV, a Division of Bell Media Inc. (“the media”) seek leave to be granted intervenor status in this case to oppose the motion by the police defendants to close all or a portion of this case from the public.
[9] No party opposes the motion for intervenor status.
[10] Intervenor status routinely is granted to the media on a motion to ban publication of a court proceeding: see Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, at para. 58; Hollinger Inc. v. The Ravelston Corp., 2008 ONCA 207, at paras. 36-42, 89 O.R. (3d) 721.
[11] Accordingly, leave is granted for the media to appear as intervenors with regard to the motion of the police defendants now under consideration.
2. Is the criminal case publication ban pursuant to [s. 486.4(1)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec486.4subsec1_smooth) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) still in force?
[12] Although legally unnecessary, and all parties agree that the publication ban entered in the criminal case remains in full force, it is helpful for the resolution of other issues to review the procedural history and law on this point.
[13] The criminal case, out of which this civil case arose, was in both the Ontario Court of Justice and the Superior Court of Justice because the Crown elected to proceed by indictment and the defence elected to have a preliminary hearing. In the Ontario Court of Justice, Case No. 12-681, a publication ban pursuant to s. 486.4(1) of the Criminal Code, R.S.C. 1985, c.C-46, was entered by Justice of the Peace H. DeBacker on April 3, 2012, and again by Justice L. Dean on June 22, 2012. In the Superior Court, Case No. CR-12-2661, the continuation of the non-publication order from the Ontario Court of Justice was noted in an endorsement on March 12, 2013.
[14] Section 486.4(1) provides, in pertinent part, as follows:
[T]he presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section … 271 [sexual assault] ….
[Emphasis added.]
[15] The purpose of such legislation is to encourage the reporting of sexual offences which, in turn, aids the broader objective of suppressing crime: see R. v. Adams, 1995 CanLII 56 (SCC), [1995] 4 S.C.R. 707, at para. 24 (mandatory publication bans).
[16] There is nothing in the language of the statute which purports to authorize a revocation of an order.[^1] Moreover, the statute itself does not contain a “sunset” provision found in other publication bans which automatically end the ban upon the occurrence of an event: see, e.g. ss. 539(1)(c) & (d) (preliminary hearing evidence ban ends on the completion of the trial) and s. 648(1) (ban on information heard outside the presence of a jury during a jury trial ends when the jury retires to consider its verdict). Thus, I am of the view that “once a [non-publication] order is made it continues in effect until varied by a court having jurisdiction to do so.”: see R. v. V.K. (1991), 1991 CanLII 5761 (BC CA), 68 C.C.C. (3d) 18, at p. 21 (B.C.C.A.).
[17] Yet, the police defendants pressed, both in writing and orally, for the entry of a new publication ban protecting the identity of the complainant in the criminal case. I decline for two reasons. First, it is unnecessary. The publication ban entered in the criminal case remains in full force and effect here. Second, and most importantly, I fear any additional order, especially as proposed by the police defendants, could sew confusion and dilute the strength of the original order. The identity of the complainant, now a civil defendant, is best protected by a simple but strong recognition of its continued existence in this case.
[18] That recognition does not end the matter, however. Counsel for the media suggested the wisdom of a notice on the civil file of the existence of the publication ban to ensure the recognition of the continuation of the order entered in a criminal case. I am grateful to counsel and agree. Accordingly, the following notice shall be posted on the face of this file:
WARNING
The court order made under s. 486.4(1) of the Criminal Code shall continue. Any information that could identify S.M., a defendant herein, shall not be published, broadcast, or transmitted in any way.
3. Should leave be granted for the use of initials in pleadings filed in this case?
[19] All parties are now in agreement that the identification of all non-police parties in the pleadings shall be by initials and not by names. This is necessary to comply with the non-publication order prohibiting any “information” which could identify the complainant in the sexual assault case. The defendant/complainant and H.A., the civil plaintiff here and the accused in the criminal case (“plaintiff/accused”), are cousins. Moreover, they belong to an immigrant group which is less than populous. Thus, the identification of the plaintiff/accused or his family by name could identify the complainant. Although unstated, this connection was made in the judgment in the related criminal case, R. v. H.A., 2013 ONSC 5242, [2013] O.J. No. 3720, which used initials for all the non-police parties here.
[20] Accordingly, in all pleadings filed in this action, all non-police parties shall be identified by their initials and not by their names.
4. Should the Rule 20 materials be sealed?
[21] The police defendants particularize those materials which they want sealed – namely everything they intend to file in support of their motion for summary judgment. These include the criminal case transcripts of the preliminary hearing and trial as well as all the police statements, including the video interviews. According to the police defendants, these materials contain “sensitive and private information” regarding the defendant/complainant and the plaintiff/accused. The police defendants assert that the motion is brought 1) to foster the administration of justice by protecting the privacy interests of the defendant/complainant and 2) from concern that the Rule 20 filings may run afoul of the s. 486.4(1) non-publication order. In addition, the police defendants add that the disclosure framework found in the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M. 56 (“MFIPPA”) should be adopted by this court.
a. Privacy interests
[22] I agree that the privacy interests of the defendant/complainant need to be protected in this related civil case. I agree that the protection of the privacy interests of a complainant encourages more reporting of sex offences and thus benefits the administration of justice. But in my view, the existing order pursuant to s. 486.4(1) provides that very protection and it continues here.
b. Section 486.4(1)
[23] The claimed concerns over the breadth of the s. 486.4(1) order are misplaced. The order does not include the filing of motion material in a civil case. First, a fair reading of the section shows that it targets “publication,” the public dissemination of the information by any means. The police defendants grasp the last method of public dissemination, transmittal, as encompassing the act of court filing. This is incorrect. Not only should the statute be read as a whole for its meaning, but also such an interpretation would lead to an umbrella coverage of virtually any communication of the information far beyond its intended purpose. Second, the statute contains a court disclosure exception found in subsection (4) which states:
An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community.
[24] For both reasons, the prohibitions of an order under s. 486.4(1) do not apply to traditional Rule 20 filings with the court.
c. [MFIPPA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-m56/latest/rso-1990-c-m56.html)
[25] I decline to adopt the framework of disclosure found in MFIPPA. First, MFIPPA does not apply to court filings: s. 51(1), MFIPPA. Second, courts are not “institutions” as defined in MFIPPA. Courts are independent and have developed a separate privacy regime, discussed below, in balancing privacy rights, the right to a fair trial, and the freedom of the press.
d. The Dagenais/Mentuck test
[26] In R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, the Supreme Court reformulated the Dagenais test. At para. 32, Iacobucci J. said:
A publication ban should only be ordered when:
(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 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.
[27] This test applies to all discretionary court orders that limit the freedom of the press in relation to legal proceedings. Toronto Star, at para. 7.
[28] The Dagenais/Mentuck test has two prongs. The first is the necessity prong: the necessity of the publication ban proposed. The second is the proportionality prong: a balance between the proposed ban`s salutary and deleterious effects.
[29] The necessity prong itself has three important elements. The first is whether there is a serious risk to the proper administration of justice. This risk must be serious and “well-grounded in the evidence.” Mentuck, at para. 34. The second concerns the correct assessment of the proper administration of justice in this context. Courts must be cautious against an overly expansive interpretation which would conceal excessive information. Mentuck, at para. 35. The third seeks minimal impairment. Courts should consider alternatives to a proposed ban which would address the risk with fewer restrictions on the openness of the court. Mentuck, at para. 36.
[30] Importantly, convincing evidence is required.
It is precisely because the presumption that courts should be open and reporting of their proceedings should be uncensored is so strong and so highly valued in our society that the judge must have a convincing evidentiary basis for issuing a ban.
Mentuck, at para. 39. Generalized assertions alone are insufficient. Toronto Star, at paras. 9 & 41.
e. Principles applied
[31] Here, the police defendants seek to seal Rule 20 motion material pursuant to s. 137(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which provides:
A court may order that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record.
[32] The media objects citing s. 2(b) of the Canadian Charter of Rights and Freedoms which provides:
Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
[33] To satisfy its burden, the police defendants filed only affidavit evidence of their lawyer. Therein, the lawyer asserts that the intended Rule 20 material contains sensitive and identifying information about the defendant/complainant, the plaintiff/accused, and others. Affidavit of Sheila C. Handler, dated May 23, 2017, at para. 17 (“Affidavit”). The Rule 20 material sought to be sealed includes the preliminary hearing and trial transcripts in the criminal case, the police video interviews of the defendant/complainant, the plaintiff/accused, and others, and the Reasons for Judgment in the criminal case. Affidavit, at para. 17. The reason for the proposed sealing order is stated in the Affidavit at para. 19:
I verily believe that the documents filed and to be filed in this action for use on the Rule 20 motion would clearly identify and provide personal information of the parties and that the filing of some of this documentation may be in violation of and/or inconsistent with the purpose of the publication bans placed on the criminal trial evidence.
[34] The stated purpose behind the proposed sealing order is found in paragraphs 57, 58, 61 and 62 of the police defendants’ factum which state:
The police defendants have an ongoing interest in their ability to effectively investigate allegations involving sensitive and private information, such as those involving sexual assault. The ability to conduct these investigations may be fettered by a complainant’s fear that sensitive and private information reported to the police may later be made available to the public, without their consultation.
The threat of having private and intimate details becoming available to the public could discourage victims of crime from reporting such crimes to the police, or could discourage complainants from being truthful and forthcoming with police.
It would be contrary to the proper administration of justice to protect the privacy of complainants in a criminal proceeding, only to have that privacy violated if and/or when the complainants are involuntarily made defendants in civil proceedings.
This motion is not about concealing information from the public or making otherwise public information private; this motion is about balancing the public’s right to access to information and the privacy rights of individuals.
[35] The police defendants principally rely on two trial court decisions in which the court file was sealed in civil cases: K.K. v. K.W.G., [2006] O.J. No. 5679 (Sup. Ct.), and J. Doe v. TBH, [1996] O.J. No. 839 (Ont. Ct. J. – Gen. Div.). I find neither helpful. Of important note, the media was not involved in either case.
[36] In K.K., there was no underlying non-publication order and the plaintiff only sought, in essence, a civil version of a criminal case non-publication order. K.K., at para. 1. In a very brief decision, it appears that the court on its own, and without explanation, expanded the relief sought to include the sealing of the court file. K.K., at para. 6.
[37] J. Doe was a consent order. There was significant and particularized evidence placed before the court on this issue. J. Doe, at paras. 2 & 6. There was no necessity and proportionality analysis as now required by the Dagenais/Mentuck test.
[38] For these reasons, I decline to follow either K.K. or J. Doe.
[39] Addressing the sealing issue directly, it is patently clear that the police defendants have failed to discharge their burden to overcome the presumption of openness in our courts. They failed to satisfy any of the three elements of the necessity prong of the Dagenais/Mentuck test. Generalized assertions by their lawyer that the Rule 20 material will contain sensitive and identifying information does not carry the day.
[40] Further, and concerning, the police defendants exhibit an apparent misunderstanding of the law in this area. There is an overriding principle of openness in our courts. This principle is on full display here. Both the related criminal trial and its preliminary hearing were open to the public. The transcripts of these court proceedings are available to the public. Their respective court files are open to the public. The Reasons for Judgment of Pomerance J. is public and can be accessed by anyone at 2013 ONSC 5242 or [2013] O.J. No. 3720. Yet, the police defendants seek to seal the transcripts and the Reasons for Judgment, materials they concede are available to the public now.
[41] The police defendants say they want to seal sensitive and personal information contained in the Rule 20 material, and especially in the police video interviews, because making such material public will negatively impact their ability to investigate like allegations. But this sweeping statement ignores the fact that any such allegation that proceeds to court almost always will include public disclosure of sensitive and personal information. Indeed, most, if not all, of the information sought to be sealed already has been made public at the trial of the underlying criminal case where both S.M. and H.A. gave evidence. By the very nature of the crime, sexual assault cases include open disclosure of the most personal information. That reality does not mean the courts are closed to the public for such cases. It does mean that the courts are respectful and sensitive to the personal nature of the disclosure while upholding the presumption of innocence and the right to a fair trial.
[42] Additionally, by statute in criminal cases, a complainant is afforded the protection of a publication ban of any information that could identify her/him. Such an order was entered in the criminal case here and continues today, as acknowledged by all the parties in this civil case including the police defendants. This protection is specifically designed to encourage reporting of such cases by eliminating the fear of publicity. Despite this protection being in place, the police defendants assert that more concealment by sealing is necessary because the filing alone may be in violation of the non-publication order. That reasoning simply is wrong as reviewed above.
[43] Further, the police defendants’ assertion at paragraph 61 of their factum that the privacy protections available in the criminal case are not present in the civil case is also just wrong. As previously reviewed, and as acknowledged by the police defendants, the criminal case publication ban continues in this case and covers all Rule 20 material filed in this case. The protections are identical.
[44] In sum, the police defendants have failed to provide evidentiary support for their position that the openness principle has been overcome and a sealing order is necessary.
Conclusion
[45] For the above reasons, it is ordered as follows:
The media is granted intervenor status in this motion;
The criminal case publication ban pursuant to s. 486.4(1) remains in force;
A notice of the existence of the publication ban shall be posted on the face of the court file as follows:
WARNING
The court order made under s. 486.4(1) of the Criminal Code shall continue. Any information that could identify S.M., a defendant herein, shall not be published, broadcast, or transmitted in any way.
Leave is granted for the use of initials of the non-police parties in pleadings filed in this case; and
The motion to seal the Rule 20 materials is dismissed.
Costs
[46] As the prevailing party, the media is entitled to costs from the police defendants. Both sides to this motion sought costs and agreed on the quantum sought, $6,500.00 inclusive of disbursements and taxes.
[47] I do find the agreed quantum appropriate. A fair and just award, taking into account all the circumstances and appropriate factors, is $6,500.00 all inclusive.
[48] Accordingly, for the foregoing reasons, it is hereby ordered that the police defendants, Chief of Police Al Frederick, Windsor Police Services Board, Police Officer John Doe (Badge #539), Police Officer Jane Doe, and Police Officer John Doe shall pay to the media, Post Media Network Inc. (o/a Windsor Star), Canadian Broadcasting Corporation, and CTV, a Division of Bell Media Inc., the total amount of $6,500.00, all inclusive, for costs in respect to the motion. This amount shall be paid within 30 days of the date of this order.
Original signed by Justice Kirk W. Munroe
Kirk W. Munroe
Justice
Released: September 22, 2017
CITATION: H.A. v. S.M., 2017 ONSC 5650
COURT FILE NO.: CV-14-20587
DATE: 20170922
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
H.A., M.D., N.A. by her litigation guardian, H.A., M.A. by his litigation guardian, H.A. and N.J.A. by her litigation guardian, H.A.
Plaintiffs
– and –
S.M., Chief of Police Al Frederick, Windsor Police Services Board, Police Officer John Doe (Badge #539), Police Officer Jane Doe and Police Officer John Doe
Defendants
– and –
Post Media Network Inc. (o/a Windsor Star), Canadian Broadcasting Corporation, and CTV, A Division of Bell Media Inc.
Intervenors/Respondents
REASONS on motion
Munroe J.
Released: September 22, 2017
[^1]: In the context of a mandatory publication ban, the Supreme Court recognized a very limited power of a court to vary or revoke such a ban. Adams, at paras. 29-30.