COURT FILE NO.: FC-18-FS-53892
DATE: 2020/09/01
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: G. S., Applicant (Moving Party)
AND:
K. S., Respondent (Deceased)
AND:
Metroland Media Group, Non-Party
AND:
Canadian Broadcasting Corporation, Non-Party
AND:
CTV News, a division of Bell Media Inc., Non-Party
BEFORE: Madam Justice J. Breithaupt Smith
COUNSEL: Ms. Shuchanna Swaby, Counsel for the Applicant Mother
Ms. Emma Carver, Counsel for non-party Metroland Media Group
Mr. Ryder Gilliland, Counsel for Canadian Broadcasting Corporation and
for CTV News, a division of Bell Media Inc.
HEARD: August 31, 2020
PUBLICATION BAN:
A 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 39 (SCC), 3 S.C.R. 835, prohibiting the publication of:
a. The photographs, names, ages, genders, address, school name and personal health or counselling information of the children;
b. The photograph, name, age, address, workplace and personal health or counselling information of Mother;
c. The photograph, name, age, address, workplace and personal health or counselling information of Mother’s partner and/or any minor children in his care; and
d. The addresses of Mother’s parents (Maternal Grandparents to the children) and of her sister (Maternal Aunt to the children).
E N D O R S E M E N T -- COVID 19 PROTOCOL
[1] AS A RESULT OF COVID-19 the regular operations of the Superior Court of Justice are suspended at this time, as set out in the Notice to the Profession dated March 15, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/
[2] This is a motion brought by the Application Mother (“Mother”) in writing by way of Form 14B Motion Form. The Form 14B Motion Form indicates that the motion is brought with notice to counsel for the Respondent Father (“Father”) and is unopposed, and the court notes that Mr. Sloane has been copied with all materials filed in this matter. A copy of Mr. Sloane’s letter confirming that the motion can proceed unopposed is attached as Exhibit “A” to the Affidavit filed in support of the motion.
[3] In brief, Mother seeks an order sealing the file in its entirety; issuing a ban on the publication of any information regarding the file; and initializing its contents. Alternatively, Mother seeks a temporary sealing and publication ban whilst initialization and redaction of the existing content of the file can be undertaken.
[4] As a result of my Endorsement of August 17, 2020, notice was provided to the media via the electronic notice form on the Superior Court of Justice website (the “Notice of Request for Publication Ban”). The completion of the form triggers an electronic distribution to members of the media who have subscribed to the notification service, who may then make submissions to the judge hearing the motion. Having received such notification three media outlets elected to make submissions today, namely: Metroland Media Group; the Canadian Broadcasting Corporation (“CBC”); and CTV News, a division of Bell Media Inc. (“CTV News”). Ms. Emma Carver appears for Metroland Media Group and Mr. Ryder Gilliland appears for CBC and CTV News. Ms. Grace Shafran, general counsel for CTV News, attended to observe the proceedings.
[5] In accordance with my Endorsement of August 17, 2020 and the consolidated Regional Notice to the Profession issued on June 26, 2020 effective July 6, 2020 and the Protocol for Central South dated April 7, 2020, the following electronic materials were filed by email to Kitchener.Superior.Court@ontario.ca:
a. The Applicant Mother (“Mother”) filed:
i. Form 14B Motion Form dated August 17, 2019;
ii. Amended Form 14B Motion Form dated August 19, 2020;
iii. Mother’s Affidavit dated August 17, 2020 inclusive of Exhibits “A” and “B” thereto;
iv. Affidavit of Annette Katchaluba dated August 24, 2020;
v. Mother’s Reply Affidavit dated August 24, 2020;
vi. Factum inclusive of hyperlinked authorities;
vii. Draft Order (in Word format);
viii. Confirmation; and
ix. Affidavits of Service.
b. Metroland Media Group filed:
i. Letter to the Court requesting an urgent hearing dated August 25, 2020;
ii. Affidavit of Jim Poling, Editor-in-Chief of the Waterloo Region Record newspaper dated August 21, 2020 inclusive of Exhibits “A” and “B” thereto;
iii. Written Submissions inclusive of hyperlinked authorities; and
iv. Letters from each of Mr. Sean Moreland, counsel for Canadian Broadcasting Corporation and Ms. Grace B. Shafran, counsel for CTV News, a division of Bell Media Inc.
[6] Upon the resumption of court operations, the parties shall file their materials in the continuing record at the courthouse if they have not already done so. I confirm that I do not have access to any other portion of the Continuing Record.
Scope of Relief Sought
[7] Mother’s Amended Motion before the court seeks:
a. An order sealing the court file inclusive of issued Orders and endorsements;
b. A publication ban regarding any information pertaining to the court file;
c. An order for the initialization of the names of the parties and the children;
d. A prohibition on the publication of:
i. “any name, age, address, number of children, photographs, name & address of school of any child or children of the parties or any other children and/or their parents that may be associated with this action in any way”;
ii. “the name, age workplace, photographs or addresses (former or present) of the Applicant mother or any of her relatives, including the Applicant mother’s in-laws;”
iii. Personal health information of the children or Mother;
iv. “photographs, names, ages, addresses (former or present), school name(s) or workplace(s) of the Applicant mother’s current partner and the partner’s children;”
v. “any information related to the health or counselling of the parties and/or the subject children of this action.”
e. In the alternative, the above relief for between one and six months;
f. In the further alternative, that the existing Temporary, Without Prejudice Order continue “for at least 14 to 28 days to allow further evidence to be provided by the Applicant mother” (with further argument thereafter);
g. In the further alternative, that if the name of the Respondent Father is to be released, then:
i. The court file will be sealed to allow for redactions to sanitize its contents of anything “that may identify the parties, their addresses, or their child(ren), or third parties and their addresses, or the children’s school name and address;” and/or
ii. The “details” of the court file are to be sealed (and in argument, such details were determined to relate to the medical and mental health records of the parties and the children and any information regarding domestic violence);
h. An Order that the motion be heard in camera.
[8] For Metroland Media Group, publishers of the local daily newspaper The Waterloo Region Record (“The Record”), Ms. Carver confirmed that she had instructions to consent to a ban on the publication of the following information:
a. The photographs, names, ages, genders, address, school name and personal health or counselling information of the children; and
b. The photograph, name, age, address, workplace and personal health or counselling information of Mother.
[9] Ms. Carver further noted that, although she did not have specific instructions, she did not see any concern in extending the publication ban to include:
a. The photograph, name, age, address, workplace and personal health or counselling information of Mother’s partner and/or any minor children in his care; and
b. The addresses of Mother’s parents (Maternal Grandparents to the children) and of her sister (Maternal Aunt to the children) as a natural expansion of the prohibition on publication of the children’s home and school addresses on the basis that the children spend time at these locations.
[10] On behalf of CBC and CTV News, Mr. Gilliland advised that his clients did not agree to be noted as consenting to any prohibition on the publication of any information. Having said this, he observed that the concessions put forward by Ms. Carver were reasonable in the circumstances.
Summary of Conclusions Reached
[11] Mother’s request that the motion be heard in camera is denied.
[12] A ban on the publication or dissemination of the following information shall issue:
a. The photographs, names, ages, genders, address, school name and personal health or counselling information of the children;
b. The photograph, name, age, address, workplace and personal health or counselling information of Mother;
c. The photograph, name, age, address, workplace and personal health or counselling information of Mother’s partner and/or any minor children in his care;
d. The addresses of Mother’s parents (Maternal Grandparents to the children) and of her sister (Maternal Aunt to the children).
[13] For clarity, no publication ban shall issue regarding Father’s photograph, full name, age, home or workplace address, medical records or any mental health diagnosis, allegations of violence perpetrated by him, or any of his interactions with police or the criminal justice system except as otherwise prescribed by law.
[14] Rule 1.2 of the Family Law Rules[^1] requiring the redaction of sensitive financial information from court documents shall be retroactively applied. Any financial document containing any of the details set out at Rule 1.2(2)(a) – (d) shall be sealed for a period of seven (7) days to allow for the completion of these redactions, which shall be done by Mother’s counsel or her appointed agent directly on the document contained in the court file.
[15] The court file shall be initialized.
Background
[16] This matrimonial litigation, which has been ongoing for two years, concerns two parents and two young children. Although I do not have access to the complete court file, I am advised that it contains allegations of violence by Father toward Mother and information regarding Father’s mental health diagnosis. I am further advised that Mother has re-partnered and that she and the children live in a blended family with her partner’s children. A brief review of the Orders made in this matter to date provides the history of this file:
• August 20, 2018 – Order on Motion Without Notice: that Mother have interim sole custody of the two children (then aged 7 and 5) with no access to Father; for exclusive possession of the matrimonial home to Mother; for a police assistance clause and a 500-metre restraining order.
• January 18, 2019 – Order on consent for disclosure of records of Family & Children’s Services of the Regional Municipality of Waterloo.
• January 18, 2019 – Order on consent requesting the appointment of a professional through the Office of the Children’s Lawyer.
• May 22, 2019 – Order on consent for disclosure of records of Waterloo Regional Police Service.
• November 5, 2019 – Further Restraining Order with amendment on consent to authorize indirect contact by Father to Mother through supervised access service.
• November 5, 2019 – Order on consent for supervised access between children and Father, with additional reunification counselling component.
[17] Since the latest substantive order was made on November 5, 2019, the family has been engaged with reunification counselling through By Peaceful Waters counselling and therapeutic services. Very recently, a Settlement Conference was scheduled through the Trial Coordination Office for October 30, 2020.
[18] On Friday, August 14, 2020 at approximately 10:30 a.m. a male individual was killed when a vehicle occupied by him and parked in front of the Waterloo Region Courthouse burst into flames. It now appears almost certain that the male individual was Father. He was the registered owner of the vehicle. Homes adjacent to his residence and to Mother’s residence were temporarily evacuated to allow Waterloo Regional Police Services to ensure that no one else was in immediate danger. Both the coroner and police continue to investigate the incident, which has attracted local and national media attention. The coroner has not yet confirmed the identity of the male occupant of the vehicle, but the release of that information is imminent.
[19] Understandably, Mother fears for the wellbeing of her children, who are only 9 and 7 years of age. She attests that the children are not yet aware of the details of Father’s death and she does not want them to learn of these details through the media. She has planned for the children to engage in grief and trauma counselling through the agency that had been providing “reunification counselling and supervised contact” between the children and Father prior to his death. She is working closely with the Principal of the school that the children will attend next week to “help prepare” them so that they will not “be exposed to the curiosity, potential ridicule, ostracization, and other stigmatizing acts or omissions of their peers that will undermine the children’s psychological security and emotional recovery.” On the basis that she and the children would be deprived of dignity, she is concerned about the general public having access to “detailed information and evidence about the incidents of domestic violence that [she] suffered at the hands of the deceased, as well as specific details about his emotional, mental and physical condition.”
[20] Because of the Restraining Orders, Mother’s home address, the address of the children’s school, Mother’s work address and the address of Maternal Grandparents are immediately apparent upon opening the court file. Between the date of the incident (morning of August 14th) and the issuing of the temporary, without prejudice publication ban and sealing order (evening of August 17th), media representatives attended at her home and a local reporter attempted to contact her via social media. There is no evidence that the children have been approached by any member of the media or other person seeking to discuss their Father’s death with them.
[21] The media outlets jointly confirm that they are already aware of Father’s identity. They have obtained this information through sources other than the court file. Metroland Media Group confirms that it “has no intention or interest in publishing the names of the children or the applicant mother in this proceeding, nor in publishing the sensitive or granular details of the underlying family dispute.”
[22] Both Mother and the media outlets confirm that speculation and theories have been swirling online regarding the incident. The material presented shows that as of August 20th, comments on a Reddit thread theorized about: mental health issues; car bombings as being typical of biker gang involvement; and the incident being akin to suicide bombings in the Middle East. Further, The Record received a letter to the editor on August 18th, which included the following statement:
Given the circumstances, the deceased could be mentally ill, or hold a grudge against society, the government or a member of the justice system. The failure to provide any context about the deceased man who put the public at such risk takes privacy concerns to an indefensible length and borders on disrespect to the community at large.
[23] All agree that this was a high profile, violent, public incident. Had Father chosen to take his own life in private, this motion would be unnecessary.
Analysis
[24] As Canadians, we have the great benefit of constitutionally-protected rights and freedoms. Section 2 of the Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, provides:
- Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
[25] Our rights and freedoms are guaranteed, subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.[^2] In this matter, I must determine what, if any, limits upon the freedom of expression are demonstrably justifiable to protect these children from harm that could arise from the publication of information regarding their Father.
A. Transparency of the Administration of Justice
[26] Open and accessible justice is a foundational principle of a functioning democracy. Confidence in the handling of threats to public safety and other serious incidents requires transparency:
Openness… 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 the courts.[^3]
[27] Public access to the courts guarantees the integrity of judicial processes by demonstrating that justice is administered in accordance with the rule of law.[^4] The burden of displacing the general rule of openness lies on the party making the application.[^5]
B. The Media as Guardians of Transparency
[28] The Media hold the great power and responsibility of acting as guardians of transparency for all branches of government. It behooves the Media to investigate with rigor and integrity and to report events accurately in an unbiased and timely manner. On the specific connection with the administration of justice, writing for the Supreme Court of Canada, Justice Cory explained[^6]:
It is only through the press that most individuals can really learn of what is transpiring in the courts. They as “listeners” or readers have a right to receive this information. Only then can they make an assessment of the institution. Discussion of court cases and constructive criticism of court proceedings is dependent upon the receipt by the public of information as to what transpired in court. Practically speaking, this information can only be obtained from the newspapers or other media.
[29] Of course, unbiased and accurate reporting can only take place where facts and information can be obtained directly:
[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.[^7]
[30] Thus, the presumption is that our courts are open and that our media is able to report upon their functionality. It is not up to media representatives to argue against a proposed limitation on openness; openness maintained by freedom of expression is the starting point.
C. The Dagenais-Mentuck-Sierra Club Test
[31] Restriction upon public access to the courts, including sealing orders and publication bans, should be ordered only when[^8]:
(a) such an order is necessary in order to prevent a real and substantial risk to an important public interest, such as 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.
[32] The first part of the test reflects the minimal impairment requirement of the Oakes test, and the second part of the test reflects the proportionality requirement. 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.[^9]
D. Concerns and Application Specific to Families and Children
[33] In L.C.F. v G.F.[^10], Harvison-Young J. (as she then was) confirmed the application of the Dagenais-Mentuck-Sierra Club Test to family litigation.[^11] Her Honour found that privacy interests of children can be sufficient to warrant limitations on the open court principle.
[34] Certainly, Ontario legislation supports the availability of sealing orders and publication bans in the family law context. Section 137(2) of the Courts of Justice Act, R.S.O. 1990 c. C-43, reads: “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.” Section 70 of the Children’s Law Reform Act, R.S.O. 1990, c. C-12 as am., provides:
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.
(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.
(3) Any interested person may make an application for an order under subsection (1).
(4) The court may vary or discharge an order made under subsection (1).
[35] On the federal level, the Youth Criminal Justice Act mandates that “no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.”[^12] Publication includes making information known or accessible, thus intentionally casting a wide net.
(a) Publication Bans
[36] The Edmonton Journal case concerned family and civil litigation. Sections 30 and 31 of the Alberta Judicature Act[^13] were being challenged as contravening freedoms of expression and of the press. Section 30(1) placed specific limitations upon the details that could be published in relation to a judicial proceeding involving the dissolution or nullity of marriage or seeking “an order, judgment or decree in respect of a marriage,” limiting the scope of publication to: (a) certain details regarding the witnesses; (b) a concise statement of the matters in issue about which evidence was given; (c) legal submissions; and (d) the decision rendered. Section 30(2) set out similar limitations on the publication of information regarding civil litigation. Section 30(3) provided for certain exceptions, including the printing of transcripts. Section 31 set out the offences arising from breaches of Section 30. Wilson, J. referenced historic decisions in which appellate courts emphasized the importance of the open court principle in matrimonial cases, which are inherently sensitive, quoting[^14]:
[The open court] requirement must be insisted upon because there is no class of case in which the desire of parties to avoid publicity is more widespread. There is no class of case in which in particular circumstances, it can be so clearly demonstrated even to a judge that privacy in that instance would be both harmless and merciful.
[37] Her Honour concluded that the court cannot allow “compassion for a limited group of people who are of particular interest to the public (because of who they are or what they are alleged to have done) to undermine a principle which is fundamentally sound in its general application.”[^15] Her Honour’s caution is resonant here. This court cannot allow compassion for the two children in this matter to cloud the assessment of the necessity and proportionality of a publication ban and/or sealing order.
[38] In A.B. v. Bragg Communications Inc.[^16], a fifteen-year-old girl sued to compel the Respondent internet service provider to disclose information regarding a cyberbully who had posted sexualized content to a fake Facebook account using her likeness. She sought a ban on publication of her identity and of other details of the case by media outlets, who opposed the ban. Citing the important public interest of allowing young victims of sexualized cyberbullying to proceed anonymously with protective civil claims against their cyber-attackers, the Supreme Court held that the applicant’s name should be initialized, which minimized the risk to a public interest whilst impairing freedoms of expression and of the press as little as possible.
[39] Although cited in this matter, the case of B.C.P. and L.P. v. A.R.P.,[^17] involved individuals seeking declarations from the Superior Court of Justice that they were the only parents of children conceived through assisted human reproductive technology, including surrogate pregnancy. Kiteley J. issued an Endorsement addressing the impact of the Chief Justice’s Practice Direction regarding discretionary publication bans on two Applications heard by Her Honour two days earlier and two Applications heard in the following week. Her Honour exercised her discretion under the Practice Direction and held that the applicant parents were not required to serve and file a Notice of Request for Publication Ban or to notify the media. I see no connection between the facts of the four Applications before Kiteley J. and the case at bar.
(b) Sealing Orders
[40] In K. (M. S.) v. T. (L. T.).[^18], an extremely wealthy parent argued that the child was at risk of abduction and ransom as a result of her family’s affluence, details of which could be gleaned from the court file. Kiteley J. described the protection of children from possible abduction and ransom as a “social value of superordinate importance” akin to the principle of public access to court proceedings and documents. While I am not certain that this is the correct analysis, the distinction between that case and the one at bar is clear: there is no reason to believe that these children are at risk of abduction.
[41] The Court of Appeal recently dealt with a situation similar to the one at bar in Donovan v. Sherman Estate[^19], in which the estate and family of Bernard and Honey Sherman sought to maintain sealing orders with respect to the probate application files. The Shermans were wealthy and prominent Torontonians who were violently murdered in their own home. In support of the continuation of the sealing orders, counsel argued that they protected the privacy and dignity of the Sherman family and that there was a risk of physical harm to individuals named in the probate application files as a result of their interest in receiving or administering the assets of the deceased. Noting that there was no evidence of a risk of physical harm to the named individuals, the Court of Appeal underscored that the consideration of privacy concerns comes into play only at the second stage of the Dagenais-Mentuck-Sierra Club test when weighing proportionality. Individual privacy concerns are personal in nature and do not have the necessary public interest component.
[42] In A. P. v. L. K.[^20], Akbarali J. declined to seal the court file in a dispute between separated parents over the vaccination of their children. Her Honour pointed out that the advent of social media and “fake news,” combined with the relative inaccessibility of the Judiciary (as contrasted with the ability of members of the Parliamentary and Executive branches of government to comment publicly about current events), have heightened the need for courts and court files to be open to the public to ensure access to accurate and complete information.[^21] She held that a tailored publication ban allowing for only the children’s ages and the fact that they were unvaccinated to be released, coupled with the initializing of the court file, addressed the public interest of protecting children from harm arising from their parents’ matrimonial litigation whilst impairing freedom of the press as little as possible.
E. Discussion and Conclusions
(a) Is an Important Public Interest at Risk?
[43] A court may conclude, in an appropriate case, that there exists objectively discernable harm to an important public interest by applying reason and logic even in the absence of empirical evidence.[^22] To paraphrase Akbarali J. in A. P., it is important to recognize that children, already a vulnerable group, do not choose to be involved in family litigation and have effectively no ability to protect their own interests although they can be exposed to trauma or harm by the litigation itself. Logically, the possibility of harm caused to children involved in family litigation is objectively discernable harm to the public interest. The collective wellbeing of children named in litigation is an important public interest. The first branch of the Dagenais-Mentuck-Sierra Club test is met. An Order is necessary to protect this important public interest – the proportionality analysis drives the appropriate content of the Order.
(b) What Order properly balances Salutary and Deleterious Effects?
[44] Recall that an agreement has been reached and concessions made regarding the prohibition on publication of a considerable number of details including the identities of the children, of Mother, of Mother’s partner and of his children. The list of conceded details is set out at paragraphs 8 and 9 of these Reasons. Publication of the following details remains contested:
a. Father’s photograph, name, age, address, workplace and personal health or counselling information;
b. Contents of the court file unrelated to financial issues, including information regarding allegations of domestic violence by Father against Mother;
c. Information identifying the children’s grandparents or other extended relatives; and
d. “Any name, age, address, number of children, photographs, name and address of school of any other children and/or their parents that may be associated with this action in any way.”
Of these remaining details, the last category is so overbroad as to be undefinable. The focus will therefore be on the first three categories. In addition, Mother asks that all names contained in the court file be initialized.
[45] Duration of the requested Order is also in issue. Mother argues that the protection of her children from possible emotional harm should trump the open court principle and freedom of the press until later on in the children’s lives when they will be older and better-equipped to process their Father’s actions. She argues that, at a minimum, the publication ban and sealing order should continue until mid-October so as to provide time for the children to benefit from counselling. It would be a disturbing precedent to put Canadians’ constitutionally-protected freedoms on hold indefinitely until an impacted individual decides, from a subjective perspective, that he or she is sufficiently emotionally stable to withstand the exercise of those freedoms. Thus, any Order issued will not specify duration on the basis of the children’s counselling progress.
[46] As the children are not yet aware of the circumstances of Father’s death, Mother argues that learning about it through the media will cause them added trauma. Mother says that a publication ban is not enough, and that a sealing order must issue, based on the further risk said to arise from the possibility that the children will speak with another person who connects them with details gleaned from the court file. Those details include specific allegations of abuse of Mother by Father and Father’s mental health diagnosis.
[47] The media outlets argue that this is a story about Father. Silencing of the story will erode public trust both in the administration of justice and in the credibility of the press. A broad prohibition on publication on the basis that the individual involved has young children would have an extreme chilling effect on the media’s ability to report about any issue. Further, the absence of accurate information will encourage rampant speculation and misinformation. Reporting on the deceased’s identity is necessary to help the public understand what happened and to ensure accurate reporting. They note the following:
a. the incident was not a private suicide or tragic accident, but rather involved an intentional and dangerous explosion;
b. the incident took place in front of one of the most public buildings in Waterloo Region, namely the courthouse;
c. the incident touches upon courthouse security;
d. Central Kitchener was shut down for several hours while investigations were ongoing;
e. local homes and businesses including the courthouse were evacuated;
f. bystanders tried to rescue the deceased and reported being deeply affected;
g. members of the public could have been seriously injured or killed;
h. police briefings mentioned the possibility of the use of an “improvised explosive device” or some form of fire accelerant;
i. the lack of information has resulted in speculation about criminal activity and accusations that the media’s failure to provide information is disrespectful to the public;
j. it is unprecedented that the identity of an adult person involved in such a high profile and violent act is not released, regardless of whether that person has minor children;
k. in the absence of direct evidence from extended family members, it would be inappropriate to prohibit them from coming forward to speak to the media; and
l. in any event, the story does not spring from the court file but rather is a result of Father’s own actions, and therefore sealing it would be illogical.
[48] On the specific issue of initializing Father’s name, the media outlets argue:
a. that any individuals connected with the family will already be aware of the situation;
b. that the parties’ surname is sufficiently common that the children would not necessarily be identified as a result of its publication; and
c. that strangers learning the parties’ surname will have minimal impact upon the children’s experience of the situation.
[49] The media outlets further argue that any salutary effect of further restrictions on openness of the courts in this matter would be minimal, because:
a. Father’s vehicle was displayed on the front page of The Record and with multiple online articles;
b. Father’s name will be released by the coroner’s office sometime soon;
c. houses near Father’s home and Mother’s home were evacuated, and images of the immediate area have been displayed in the media; and
d. considerable information (including Father’s full name) has already been obtained by them through police briefings, interviews of family and friends and reviews of social media posts.
[50] The fact is that Mother chose to commence litigation and to put in her hitherto publicly-accessible documents details regarding Father’s mental health diagnosis and abuse she suffered at his hands. It cannot be correct to say that such details, which theoretically would have been equally damaging to the children the day before Father died, should be hidden from view now that Father’s very public suicide has attracted the spotlight of media attention. There is no evidence that any person has attempted to access the court file. In contrast, Mother has communicated sufficient information to the Principal of the children’s elementary school to formulate a plan to address the impact of the situation upon them. On this point, it cannot be correct to give Mother control over the dissemination of information regarding the circumstances of Father’s death. To do so would be to appoint her as exclusive regulator of the disclosure of previously-public information.
[51] I note that the facts in this matter are distinct from those in any of the cases to which I was referred, as no other case revolved around such a dramatic and violent public event. I find that a broad publication ban and sealing of the court file is not necessary or proportionate in this matter. I do not doubt that a sweeping publication ban or complete sealing of the court file would undermine the court’s credibility and reputation in the eyes of the public. The deleterious effect on our constitutionally-protected freedoms of expression and of the press outweighs any potential benefit to court-involved children generally or to these children specifically.
[52] Having said this, the prohibition on the publication of agreed-upon details as set out at paragraphs 8 and 9 of these reasons, coupled with the initializing of the court file, will sufficiently protect the public interest of minimizing trauma to court-involved children whilst limiting the freedoms of expression and of the press as little as possible.
[53] Finally, no counsel sought to argue the issue of costs of this motion. Having regard to the nature of this situation, I find that this is not an appropriate case for costs.
Order
[54] Based on all of the foregoing, Order to go:
- A ban on the publication of the following information shall issue, and any person who has gained access to the court file is prohibited from communicating such information to any other person:
a. The photographs, names, ages, genders, address, school name and personal health or counselling information of the children;
b. The photograph, name, age, address, workplace and personal health or counselling information of Mother;
c. The photograph, name, age, address, workplace and personal health or counselling information of Mother’s partner and/or any minor children in his care; and
d. The addresses of Mother’s parents (Maternal Grandparents to the children) and of her sister (Maternal Aunt to the children).
For clarity, no publication ban shall issue regarding the Respondent Father’s photograph, name, age, home or workplace address, medical records or any mental health diagnosis, allegations of violence perpetrated by him, or any of his interactions with police or the criminal justice system except as otherwise prescribed by law.
Any financial document in the court file containing any of the details set out at Rule 1.2(2)(a) – (d) shall be sealed for a period of seven (7) days to allow for the completion of redactions of financial particulars, which shall be done by Mother’s counsel or her appointed agent directly on the document contained in the court file.
The title of proceedings shall use initials to identify the parties. Mother’s counsel or her appointed agent may arrange directly with Court Services Division to initialize the existing documents as contained in the court file by means of redaction of names from the title of proceedings directly on the document or by replacing the first page of each document.
Any decisions, orders or other documents made public in this proceeding shall refer to the parties and their children solely by their initials.
The court file shall not be sealed.
No order as to costs.
J. Breithaupt Smith, J.
Date: September 1, 2020
Schedule “A”
RULE 1.2: REDACTIONS AND OMISSIONS
REQUIREMENT TO REDACT, OMIT
1.2 (1) After serving but before filing a document under these rules, including a financial statement (Form 13 or 13.1) or net family property statement (Form 13B or 13C), the party filing the document shall redact or omit from it and from any documents attached to it all identifying financial account numbers and personal identification numbers.
EXAMPLES
(2) Examples of information required to be redacted and omitted under subrule (1) include,
(a) social insurance numbers;
(b) bank or investment account numbers;
(c) credit card account numbers; and
(d) account numbers for mortgages, lines of credit or other loans.
DUTY RE UNREDACTED DOCUMENTS
(3) A party who files a document in which information is redacted or omitted before filing shall,
(a) retain the complete, unredacted document;
(b) ensure that the complete, unredacted document is accessible in every hearing and conference in the case following the filing of the document; and
(c) if requested to do so by a judge at a hearing or conference, provide the complete, unredacted document to the judge.
[^1]: Text of the new Rule 1.2, in force as of August 1, 2020, is set out as Schedule “A” to these Reasons.
[^2]: Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, at section 1.
[^3]: Vancouver Sun (Re:), 2004 SCC 43, [2004] 2 S. C. R. 332 at paragraph 25 (“Vancouver Sun”).
[^4]: Vancouver Sun, supra, at paragraph 25 and Canadian Broadcasting Corp. v. New Brunswick (A.G.), 1996 184 (SCC), [1996] 3 S.C.R. 480, at paragraph 22.
[^5]: Vancouver Sun, supra, at paragraph 31.
[^6]: Edmonton Journal v. Alberta (Attorney General), 1989 20 (SCC), [1989] 2 S. C. R. 1326 at 1339-1340 (“Edmonton Journal”).
[^7]: Canadian Broadcasting Corp. v. New Brunswick (A.G.), 1996 184 (SCC), [1996] 3 S.C.R. 480, at paragraph 26.
[^8]: Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835 (“Dagenais”); R. v. Mentuck, 2001 SCC 76 (“Mentuck”); Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 (“Sierra Club”).
[^9]: Vancouver Sun, supra, at paragraph 30.
[^10]: 2016 ONSC 6732 (“L.C.F.”).
[^11]: L.C.F. at paragraphs 16 – 17.
[^12]: S.C. 2002, c. 1 at section 110(1).
[^13]: R.S.A. 1980, c. J-1.
[^14]: Edmonton Journal at page 1365, paragraphs h – j, quoting from Scott v. Scott, [1913], A.C. 417 at 200-202.
[^15]: Edmonton Journal at page 1366, paragraphs a & b.
[^16]: 2012 SCC 46 (“A.B. v. Bragg”).
[^17]: Endorsement reported regarding all four Applications at 2016 ONSC 4518.
[^18]: [2002] O.J. No. 4179. Sealing order expanded to encompass the entire file by the Court of Appeal on the basis that “an exception be made to the general rule in favour of the openness of the court,” 2003 27471 (ON CA), [2003] O.J. No. 352.
[^19]: 2019 ONCA 376.
[^20]: 2019 ONSC 4010 (“A. P.”)
[^21]: A. P., supra, at paragraphs 19 – 21.
[^22]: A.B. v. Bragg at paragraphs 15 and 16.
