Court File and Parties

COURT FILE NO.: 2737/14 DATE: 2018-11-20 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: N.M., Applicant AND: M.M., Respondent

BEFORE: The Honourable Madam Justice L. Madsen

COUNSEL: Jennifer L. Swan, Counsel for the Applicant Dennita Cunningham, Counsel for the Respondent

HEARD: November 20, 2018

A limited publication ban was ordered on November 20, 2018 pursuant to my discretion under s. 70 of the Children’s Law Reform Act. No person shall publish or make public any information that has or could have the effect of identifying the parties, the non-parties, or the children. Any person who has gained, or gains in the future, access to the court file is prohibited from communicating to any other person the identity of the parties, the non-parties, the children, or any information that has the effect or could have the effect of identifying the parties, non-parties, or the children.

Endorsement

[1] This is the Endorsement in relation to a request by the Applicant mother, N.M., for the following orders:

a. A sealing order and publication ban pursuant to section 70 of the Children’s Law Reform Act, and,

b. An order that the mother and the family court be permitted to read the bail hearing transcript in relation to the matter of R. v. M. which is subject to a publication ban in criminal court.

[2] The contempt motion of the father, M.M., is also before the court as is his request to modify access in light of the criminal charges and the mother’s alleged contempt. Those issues have been adjourned pending the court’s determination on the issues set out above.

Brief Background

[3] The father brought a Motion to Change the final order of Justice Hambly dated November 24, 2015 and January 18, 2016 [“the final order”]. Before that matter could be determined, he was charged under the Criminal Code with the following offenses:

a. Sexual Assault, contrary to section 271 (two counts);

b. Make Explicit Sexual Material Available, contrary to section 171(1)(a); and

c. Sexual Interference contrary to section 151 (two counts).

[4] The final order provides that the father is to have access as follows:

a. Every other weekend from Friday at 6:00 p.m. until Sunday at 7:00 p.m.; and

b. Every Tuesday and Thursday from 6:00 p.m. to 8:00 p.m.

[5] Since the charges were laid on August 30, 2018, the father has not had any access to the parties’ child.

[6] The father says he knows that in light of the criminal charges his access must be changed. He seeks supervised access on Thursday evenings from 6:00 p.m. to 8:00 p.m. and on Sundays from 9:00 a.m. to 7:00 p.m. The father has proposed any of nineteen potential access supervisors, twelve of whom he says are known to the mother. The Catholic Children’s Aid Society has approved of his wife as a supervisor, although they have indicated by letter that they are not aware of the details of the allegations.

[7] The mother says she needs to know more about the factual allegations against the father before she can take a position on access.

[8] In that respect, the mother has sought access to the bail hearing transcript in relation to the charges. The transcript was provided to her counsel with the following publication ban:

“Information contained herein cannot be published, broadcast or transmitted pursuant to section 486.3 and 517.1 of the Criminal Code of Canada by Order of Justice J. MacDonald, Ontario Court of Justice, dated August 30, 2018.”

[9] The mother’s counsel is concerned that the publication ban in criminal court may prohibit her from providing a copy of the bail hearing transcript to her client as well as to the family court.

[10] It is in this context that the mother brings the motion for a publication ban, sealing order and permission for the transcript to be disclosed to her and to the family court.

[11] The media was provided with notice of the relief sought, as required by the Practice Direction effective July 1, 2016. No media representatives were in attendance.

Sealing Order, Publication Ban, and Initialization

[12] The parties are consenting to a sealing order and publication ban in the family court matter. However, in light of the importance of the open court principle, the court heard submissions from both counsel on each of these potential incursions on that principle. See L.C.F. v. G.F., 2016 ONSC 1028 at 21.

[13] The open court principle is emphasized in significant Supreme Court of Canada cases, including Dagenais v. Canadian Broadcasting Corp., 1994 CarswellOnt 112, and R. v. Mentuck, 2001 SCC 76, 2001 CarswellMan 535.

[14] In Dagenais, the Court held that a publication ban, sealing order, or other relief limiting court openness should only be ordered where a ban is necessary to prevent a real and substantial risk to the fairness of the trial because reasonable available alternative measures will not prevent the risk; and where the salutary effects of the publication ban outweigh the negative impact on the freedom of expression of those affected by the ban.

[15] The Dagenais test was reformulated in R. v. Mentuck with the court holding that a publication ban should only be ordered when such an order is necessary to prevent serious risk to the proper administration of justice because reasonable alternative measures will not prevent the risk; and, the salutary effects of the publication ban outweigh 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.

[16] In Re Vancouver Sun, 2004 SCC 43, 2004 CarswellBC 1376, the Supreme Court referred to what came to be known as the Dagenais/Mentuck test as "adaptable," stating that the rights and interests considered are broader than “simply the administration of justice.” See para. 28. The court stated that under Dagenais/Mentuck, “the judge is required to consider not only "whether reasonable alternatives are available, but also to restrict the order as far as possible without sacrificing the prevention of the risk." See para. 30.

[17] In H.(M.E.) v. Williams, 2012 ONCA 35, Justice Doherty for the Ontario Court of Appeal held that under the first branch of the test, described as “necessity,” there must be a public interest at stake: “Purely personal concerns of a litigant, including concerns about very real emotional distress and embarrassment that can be occasioned to litigants when justice is done in public, will not, alone, satisfy the necessity branch of the test…” At the first stage of the test, potential benefit of the order is irrelevant. Further, in approaching necessity, the high constitutional stakes must be placed at the forefront of the analysis. See paras. 25, 32, and 33. The balancing takes place only at the second stage of the test.

[18] The Children’s Law Reform Act contemplates that in some cases in the family context, it will be appropriate to restrict openness of the court process. Specific considerations include the nature and sensitivity of the information in the documents in the court file, and whether not making the order could cause harm to a person.

[19] Section 70 of the Children’s Law Reform Act provides as follows:

70 (1) Where a proceeding includes an application under this Part, the court shall consider whether it is appropriate to order,

(a) that access to all or part of the court file be limited to,

(i) the court and authorized court employees,

(ii) the parties and their counsel,

(iii) counsel, if any, representing the child who is the subject of the application, and

(iv) any other person that the court may specify; or

(b) that no person shall publish or make public information that has the effect of identifying any person referred to in any document relating to the application that appears in the court file. 2009, c. 11, s. 18.

Considerations

(2) In determining whether to make an order under subsection (1), the court shall consider,

(a) the nature and sensitivity of the information contained in the documents relating to the application under this Part that appear in the court file; and

(b) whether not making the order could cause physical, mental or emotional harm to any person referred to in those documents.

Order on application

(3) Any interested person may make an application for an order under subsection

[20] In L.C.F. v. G.F., 2016 ONSC 6732, for example, Justice Harvison Young considered a request for a sealing order and publication ban in the family context. She held that “in any and all judicial proceedings where judges are asked to utilize their discretion to order that public access to a file or proceeding be restricted, courts must apply the well-established Dagenais/Mentuck test: Re Vancouver Sun, 2004 SCC 43 at paras. 23-27 … There can be no doubt that any discretion within the family context must be exercised within the constraints of the Dagenais/Mentuck test.” See para. 17. Judges must engage in a case by case analysis.

[21] At the same time, there is an “obvious and important public interest in protecting vulnerable children from suffering trauma caused by their parents’ legal proceedings.” See Danso v. Bartley, 2018 ONSC 4929 at para. 52 per Justice Myers. In L.C.F., supra, Justice Harvison Young noted that the analysis with respect to children is “somewhat different,” and that where courts step in to protect children in family cases by imposing restrictions, “the children are demonstrably vulnerable” and generally younger (the youngest child in that case was 16). She notes that publication bans are restricted as much as possible and that sealing orders are rare. See paras. 47-50.

[22] The issues in this matter are highly sensitive. The father has been charged with serious crimes of a sexual nature in the context of a position of trust with children. The children against whom the crimes are alleged to have been committed reside in the same community as the parties’ child in this case. There is a risk that without restricting publication related to the file, the parties’ child will be identified by others and may be bullied or otherwise emotionally harmed. I can foresee the child suffering from unnecessary and preventable emotional difficulties.

[23] Further, there is already a publication ban in the context of the criminal proceedings by virtue of the nature of the alleged crimes. That publication ban protects information which would identify complainants and witnesses, including, for example, names, ages, gender, locations, or other potentially identifying information. Those protections advance the goal of a fair trial while respecting the privacy of the complainants and witnesses. To have no comparable protections in the family court context risks material being publicly available that has the effect of identifying the complainants or witnesses through this court case notwithstanding the publication ban in the criminal court case.

[24] The question becomes which protections are required in the family court context, as the law requires that that openness be impaired only to the degree required to prevent the identified risks.

[25] In my view, a publication ban and initialization are required to prevent the risks to the child set out above. Initialization will provide anonymity to the child and the parties and a publication ban will prevent the dissemination of information related to this case. These protections are also required to ensure that the limitations imposed by the criminal court to protect complainants and witnesses are not inadvertently circumvented by the publication of material in relation to the proceedings in this court.

[26] At the same time, the open court principle in this case requires that the public have access to the initialized file. The allegations are serious and there is significant public interest in the openness of the file. Neither the mother nor the father could justify why a sealing order would be required over and above a publication ban and initialization.

[27] I find that the salutary effects of a publication ban and initialization outweigh the deleterious effects on the rights and interests of the parties and the public. The administration of justice must be alive to children’s best interests and seek to minimize harm to children where it can be prevented. Preventing harm in this case requires the lesser incursions on the open court principle, not a sealing order.

Permission to provide bail hearing transcript to Applicant and the Court

[28] The mother seeks permission for her counsel to provide her with a copy of the bail hearing transcript and for a copy to be provided to the Court.

[29] This relief is consented to by the father.

[30] This court accepts the argument that the mother is unable to determine her position with respect to the father’s access without an understanding of the factual context in which the alleged crimes are said to have been committed. Although the transcripts simply set out details of allegations, not findings of fact, she should know the details of what is alleged to have occurred so that she can properly consider possible terms of access, such as the supervision proposed by the father.

[31] At the same time, it is appropriate to redact that transcript to remove any reference to the names of the complainants, or any otherwise identifying information such as the father’s position in relation to the complainants. Names of witnesses shall also be redacted. Once redacted, the transcript may be filed with the court.

Conclusion and Order

[32] Accordingly, I make the following order:

1. The title of proceedings shall be changed for all purposes to reflect the following: N.M. Applicant and M.M. Respondent and the Registrar of the Ontario Superior Court of Justice is directed to amend the records accordingly.
2. The child’s name shall be initialized as A.A. and the child shall be referred to either as A.A. or “the child” in any materials filed with the Court.
3. Any person who has gained access to the family court file is prohibited from communicating to any other person the identity of the parties, the child, or any relatives of the child or any information that has the effect of identifying the parties, the child, or relatives of the child;
4. Any person who has gained access to the family court file is prohibited from communicating to any other person the identity of the complainants or witnesses in the criminal proceeding or any information which would have the effect of identifying complainants and/or witnesses;
5. A copy of the transcript of the bail hearing may be filed with this court and provided to the mother. The transcript shall be redacted as provided in paragraph 31 herein.
6. The request for a sealing order is dismissed;
7. The father’s motion for contempt and interim variation of access is adjourned to November 20, 2018 at 2:30 p.m.

Madsen J. Date: November 20, 2018