Court File and Parties
COURT FILE NO.: FS-18-00002842 DATE: 2019-05-30 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: A.P., Applicant AND: L.K., Respondent
BEFORE: Madam Justice Kristjanson
COUNSEL: Joanna Harris, for the Applicant Andrew Faith/Emma Carver for the Respondent
HEARD: May 30, 2019
PUBLICATION BAN:
A temporary non-publication order in this proceeding has been issued pursuant to the common law powers of a judge by the Superior Court of Justice and the considerations outlined by the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp., [1994) 1994 CanLII 39 (SCC), 3 S.C.R. 835, prohibiting the publication of any evidence or information that may identify the parties or their children.
ENDORSEMENT
[1] This is an interim decision on a motion for a publication ban in a family law appeal from an arbitrator’s decision. The arbitrator dismissed the Applicant father’s request to have the children vaccinated. The father is appealing that decision. The topic of vaccines is a polarizing one, and the case has gathered a significant amount of public attention.
[2] The motion was brought by the Respondent mother to protect the identity of her children. She is requesting: (i) any decisions and documents refer to the parties and their children by initials; (ii) a publication ban with respect to information identifying the parties or their children; (iii) that the court file be sealed, and (iv) that anyone who has previously had access to the court file be prohibited from communicating information that may identify the parties or their children.
[3] The publication ban motion was served on short notice. The father requests time to respond, and I have adjourned the motion on terms. The most important terms are (a) the proper form of notice to the media, and (b) the terms of an interim publication ban.
Notice to the Media
[4] The mother’s motion falls under Part V, Section F (Publication Bans) of the Consolidated Provincial Practice Direction of the Ontario Superior Court of Justice (the “Practice Direction”). The Practice Direction establishes the default procedure to be followed when a party seeks a discretionary publication ban in any civil, criminal or family proceeding in the Superior Court of Justice. The discussion below is largely drawn from a very helpful article, Andrea Gonsalves and Benjamin Kates, “A New Era for Open Courts: Publication Ban Practice in Ontario”, The Advocates’ Journal, Summer 2017, p. 7 (“Gonsalves/Kates”).
[5] For the purposes of notice to the media, the Practice Direction should be broadly construed as applying equally to all requests for any discretionary order limiting public access to court proceedings, including requests to use initials or pseudonyms and sealing orders.
[6] Parties seeking a publication ban must notify the media, subject only to the discretion of the presiding judge. The Practice Direction provides at paragraph 107:
Unless otherwise directed by a judge, the person seeking the publication ban (the requesting party) must provide notice to the media of the motion/application, using the procedure set out in this section.
[7] Media notice takes a prescribed form. Requesting parties must submit a “Notice of Request for Publication Ban” form available on the Superior Court of Justice website. Completed notices will identify (i) the proceeding (case name, court file number and courthouse), (ii) the date and time of hearing, (iii) the nature of publication ban requested, and (iv) the details of the requesting party (name, role and legal representative). The notice must also contain contact details in the event that media wants further information about the relief requested. The contact person will normally be the requesting party’s lawyer.
[8] In this case, the wife did not provide notice in the proper form. Although no order that the parties only be identified by initials had been obtained, the wife provided notice to the media under the Practice Direction using only initials. In argument, counsel submitted that they wished to ensure the confidentiality of the parties. However, the names of the parties, in the title of proceedings, are part of the information the media may rely on to determine whether they wish to participate in the publication ban hearing.
[9] The Practice Direction is carefully designed to balance the competing interests of the parties in privacy, and the open court principle. There are protections built into the Practice Direction scheme which ensure that the information sought to be protected is not subject to publication or release simply through the act of notifying the media.
[10] Information contained in the notice is distributed electronically to members of the media who have subscribed to the Superior Court of Justice Publication Ban Notification Media Subscriber List. Media organizations (or their legal counsel) wishing to join the Subscriber List must submit a request and agree to certain terms and conditions as a precondition for receiving notice. These terms specify that the information contained in the media notice cannot be disseminated or used for any purpose other than deciding whether to participate in the corresponding hearing:
By submitting this request, you are agreeing to the following Terms and Conditions:
You will use the information provided through the Superior Court of Justice Publication Ban Notification Media Subscriber List … for the sole purpose of deciding whether or not you wish to attend and/or seek leave to make submissions at the hearing of the application/motion seeking a publication ban in a court proceeding.
You will not publish, broadcast or disseminate any of the information you receive through emails distributed through the Subscriber List in any way that could defeat the purpose of a publication ban being sought. More particularly, you will not publish, broadcast or disseminate any of the information that would be subject to the publication ban being sought, unless and until you have confirmed that the publication ban request has been determined by the Court and that publishing, broadcasting or disseminating the information would not violate the publication ban. (emphasis added)
[11] As stated by Gonsalves/Kates at p. 8:
This undertaking is crucial in that it enables media participation in a request for a publication ban without compromising the privacy interests that underlie the pending request. Indeed, in addition to being removed from the Subscribers List, subscribers who improperly disseminate the information received by way of the notification system risk a contempt finding.
[12] As a result, the wife is directed to notify the media in the manner prescribed by the Practice Direction, using the names of the parties.
Issue #2: Interim Publication Ban
[13] I exercise my discretion to issue an interim publication ban until the motion is argued on June 25, 2019. The mother has now filed information in a motion record which sets out the harm that she anticipates will be caused to the children if their identifying information becomes public.
[14] There is a strong public policy in favour of open courts, and maximum accountability and accessibility in respect of judicial acts. Openness fosters public confidence in the integrity of the court system and the administration of justice. In Re Vancouver Sun, 2004 SCC 43, [2004] 2 S.C.R. 332 at para. 25, a majority of the Supreme Court of Canada explained the openness principle as follows:
Public access to the courts guarantees the integrity of judicial processes by demonstrating “that justice is administered in a non-arbitrary manner, according to the rule of law”. 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. Moreover, openness is a principal component of the legitimacy of the judicial process and why the parties and the public at large abide by the decisions of courts.
[15] Essential to the open court principle is the ability of the media to have access to information about court proceedings, so that it can inform the public of what is transpiring in the courts. The media are surrogates for the public in courtrooms across Canada. The open court principle operates together with the right to freedom of expression, protected by s. 2(b) of the Charter of Rights and Freedoms. In Canadian Broadcasting Corporation v New Brunswick, 1996 CanLII 184 (SCC), 1996 3 S.C.R. 480, the Supreme Court of Canada held at para. 22.
[S]ection 2(b) protects the freedom of the press to comment on the courts as an essential aspect of our democratic society. It thereby guarantees the further freedom of members of the public to develop and to put forward informed opinions about the courts. As a vehicle through which information pertaining to these courts is transmitted, the press must be guaranteed access to the courts in order to gather information. … [M]easures that prevent the media from gathering that information, and from disseminating it to the public, restrict the freedom of the press. To the extent that such measures prohibit public access to the courts and to information about the courts, they may also be said to restrict freedom of expression in so far as it encompasses the freedom of listeners to obtain information that fosters public criticism of the courts. (emphasis added)
[16] The right of the public to receive information is protected by the constitutional guarantee of freedom of expression. The media plays a vital role as the conduit through which the public receives information regarding the operation of courts. Consequently, the open court principle and media access to court proceedings are not to be interfered with lightly.
[17] To ensure that requests to limit court openness are determined with due regard for the open court principle and the role the media plays in its effectiveness, requests for discretionary orders limiting public access to court proceedings are subject to the Dagenais/Mentuck test: R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, at para. 32; Dagenais v. Canadian Broadcasting Corp, 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, at 878. According to the Dagenais/Mentuck test, a limiting order such as a sealing order, publication ban, or order allowing the use of initials or pseudonyms should not be made unless the party seeking it establishes through convincing evidence that:
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
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.
[18] There is no automatic interim ban upon the filing of an application for a publication ban. I find that the Dagenais/Mentuck test supports the issuance of an interim ban in this case. To deny the interim ban would mean the application for a publication ban, to be argued on June 25th, would be moot.
[19] An interim publication ban on identifying information would preserve the mother’s ability to argue on behalf of the privacy and security interests of her children, and would have a minimal deleterious effect on the rights and interests of the father and the media. Any deleterious effect would be outweighed by the salutary effect of having the application for the publication ban dealt with in an orderly manner, including by ensuring that media representatives are properly notified pursuant to the Practice Direction. As stated by Gonsalves/Kates at p.9:
Because a court applying the Dagenais/Mentuck test must consider the free-expression interests of the media and the public regardless of whether there is a party to champion them, submissions from the media enable the court to better adjudicate the moving party’s request.
[20] An interim publication ban is to issue on the following terms:
(1) This decision, motion and documents filed on the motion shall refer to the parties and their children by initials;
(2) There is a publication ban with respect to information identifying the parties or their children;
(3) Anyone who has previously had access to the court file is prohibited from communicating information that may identify the parties or their children;
(4) The Respondent wife is directed to notify the media in the manner prescribed by the Consolidated Provincial Practice Direction of the Ontario Superior Court of Justice, using the names of the parties; and
(5) The interim publication ban made today respecting all proceedings in this matter presently before this court will continue, subject to any further order of this court, until June 25th, at which time the continuation of the interim publication ban will be addressed on the motion.
Justice Kristjanson
Date: May 30, 2019