Canadian Broadcasting Corporation (Radio-canada) v. Canada (Attorney General)

Canadian Broadcasting Corporation (Radio-canada) v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2016-08-15
Neutral citation
2016 FC 933
File numbers
T-2084-14
Notes
Reported Decision
Decision Content
Date: 20160815
Docket: T-2084-14
Citation: 2016 FC 933
Ottawa, Ontario, August 15, 2016
PRESENT: The Honourable Madam Justice Roussel
BETWEEN:
THE CANADIAN BROADCASTING CORPORATION / RADIO-CANADA
Applicant
and
CANADA (ATTORNEY GENERAL)
Respondent
JUDGMENT AND REASONS
I. Overview [1] This application for judicial review is about competing interests: the open court principle, which is deeply rooted in our legal system and the protection of the privacy of sexual assault complainants in court martial cases. Like any other court, courts martial are public. In cases involving the prosecution of sexual offences, publication bans can be ordered to protect the identity and privacy of a complainant. However, members of the public, including the media, can still be present in the courtroom. At issue in this application is whether a publication ban prohibits access to a complainant’s identity, as contained in court records, once the court martial proceedings are over.
II. Background A. Request for court martial decisions [2] Rachel Houlihan, a journalist employed with the Canadian Broadcasting Corporation [CBC] Fifth Estate program, has been investigating the prosecution of sexual assault by the Canadian military justice system. On June 12, 2013, she sent an email to Captain Amber Bineau, a Public Affairs Officer with the Department of National Defence, asking for all the documents related to a particular sexual assault court martial which proceeded in 2008. In a response communicated the same day, Captain Bineau informed Ms. Houlihan that she had put in the request for the transcript and decision, but due to a publication ban, the Office of the Chief Military Judge would need to sever the documents before releasing them. A week later, Captain Bineau sent Ms. Houlihan a redacted copy of the requested decision but informed Ms. Houlihan that the remaining part of her request would take some time.
[3] On June 21, 2013, Ms. Houlihan sent another email to Captain Bineau inquiring as to why the decision had not been posted online.
[4] On August 2, 2013, Captain Bineau advised Ms. Houlihan that:
Court decisions are posted on the Chief Military Judges (sic) website once the presiding military judge has reviewed the transcribed decision and has approved it for publication. Those decisions under publication ban require extensive review and consultation to ensure the documents are severed in accordance with the Courts (sic) orders, and are compliant with federal legislation, including the Privacy Act and Criminal Records Act. This review may involve removing any information that could potentially identify a complainant or witness. Prior to 2010, court documents under a publication ban were provided upon request. Since 2010, the military judiciary writes its respective decisions in a format allowing court decisions to be published on the Chief Military Judges (sic) website, including those decisions whereby the Court has ordered a publication ban.
[5] On December 10, 2013, Captain Bineau wrote to Ms. Houlihan asking whether she still required the transcript in relation to the 2008 court martial decision. Ms. Houlihan responded that she did not think she would need the full transcript but would confirm later. She also requested decisions in fourteen (14) other cases from 2004 involving allegations of sexual assault or similar allegations.
[6] On March 26, 2014, Captain Bineau sent the fourteen (14) decisions to Ms. Houlihan. Six (6) of the decisions included redactions or word substitutions. With the exception of one decision, all of them included a warning that the identity of the complainant and any information that would disclose their identity could not be published in any document or broadcast in any way. The majority of the warnings indicated that the publication bans were imposed pursuant to subsections 486(3) and 486(4) of the Criminal Code, RCS 1985, c C-46, as they read in 2004.
B. Application to the Courts Martial [7] In an unrelated court martial involving a charge of sexual assault subject to a publication ban, the CBC filed a Notice of Application on April 24, 2014, with the Office of the Chief Military Judge seeking an unredacted copy of the decision and transcript or audio recording in that case, including a copy of any publication ban issued by the court martial. The CBC also sought a declaration that the audio recordings, transcripts and other records of courts martial are presumptively public and are not subject to the provisions of the Privacy Act, RSC 1985, c P-21.
[8] On August 28, 2014, Military Judge d’Auteuil dismissed the CBC’s application on the grounds that he did not have jurisdiction to hear the application.
[9] On October 9, 2014, the CBC filed its Notice of Application in this Court.
[10] Throughout the proceedings, the CBC has stated that it does not wish to publish the information that is subject to a publication ban and it has undertaken not to do so. The CBC has indicated that it is seeking the names of the complainants for the purpose of having a reporter contact them and invite them to tell their stories.
III. Legislative Framework [11] The Canadian military justice system consists of a two-tiered tribunal structure: summary trials, which are designed to deal with minor service offences, and courts martial, which deal with more serious offences and are tried either by a military judge alone or a military judge and a panel of senior members of the Canadian Forces. There is no permanent court martial. Instead, courts martial are constituted on an ad hoc basis and convened only when necessary to address specific charges under the Code of Service Discipline (Canada (Military Prosecutions) v Canada (Chief Military Judge), 2007 FCA 390 at para 5 [CMP v CMJ]).
[12] Pursuant to subsection 179(1) of the National Defence Act, RSC 1985, c N-5 [NDA], a court martial has the same powers, rights and privileges as a superior court of criminal jurisdiction with respect to the attendance, swearing and examination of witnesses; the production and inspection of documents; the enforcement of its orders; and all other matters that are necessary or proper for the exercise of its jurisdiction.
[13] Subsection 180(1) of the NDA provides that courts martial shall be public, subject to the exceptions set out in subsection 180(2). Section 180 of the NDA reads:
180 (1) Subject to subsections (2) and (3), courts martial shall be public and, to the extent that accommodation permits, the public shall be admitted to the proceedings.
(2) A court martial may order that the public be excluded during the whole or any part of its proceedings if the court martial considers that it is necessary
(a) in the interests of public safety, defence or public morals;
(b) for the maintenance of order or the proper administration of military justice; or
(c) to prevent injury to international relations.
(3) Witnesses are not to be admitted to the proceedings of a court martial except when under examination or by specific leave of the court martial.
(4) For the purpose of any deliberation, a court martial may cause the place where the proceedings are being held to be cleared.
[14] The role and functions of the Court Martial Administrator [CMA] are set out in sections 165.18 through 165.2 of the NDA, as well as section 101.17 of the Queen’s Regulations and Orders for the Canadian Forces [QR&Os]. Specifically, the CMA is responsible for:
a) managing the Office of the Chief Military Judge and supervision of personnel, other than military judges, within that Office;
b) convening General Courts Martial and Standing Courts Martial;
c) appointing members of General Courts Martial;
d) assigning a court reporter for each court martial or other hearings before a military judge;
e) controlling and maintaining the schedule for courts martial and other hearings before a military judge;
f) maintaining a file in respect of each court martial or other hearings before a military judge; and
g) retaining the recording and minutes of proceedings of each court martial and other hearings before a military judge.
[15] Pursuant to subsection 165.19(3) of the NDA, the CMA acts under the general supervision of the Chief Military Judge. The Office of the Chief Military Judge was created through a Ministerial Organization Order and is designated as a unit of the Canadian Forces embodied in the Regular Force. Its role is set out in the Canadian Forces Organization Order 3763 issued on behalf of the Chief of Defence Staff. Specifically, the Office of the Chief Military Judge is responsible for:
a) appointing military trial judges to preside at Standing Courts Martial and Special General Courts Martial;
b) appointing military trial judges to officiate as judge advocates at Disciplinary and General Courts Martial;
c) appointing Presidents and members of Disciplinary and General Courts Martial; and,
d) providing court reporting services and transcripts of the proceedings of courts martial.
[16] Also, the Chief Military Judge may, with the Governor in Council’s approval and after consultation with a rules committee established under regulations made by the Governor in Council, make rules governing, among other things, the minutes of proceedings of courts martial and other proceedings as well as public access to documents, exhibits or other things connected with any proceeding (subsections 165.3(e) and 165.3(f) of the NDA).
[17] Although a draft Policy on the Publication of Court Martial Information dated September 17, 2004 was prepared by the Office of the Chief Military Judge, the evidence is unclear whether the policy was ever adopted. In an email dated September 23, 2014, the CMA informed the CBC’s counsel that her office had been unable to locate a signed copy of the policy and that she had no indication as to whether it had ever been published or made available to the public. She further indicated that she considered the draft policy to be of no force and effect.
IV. Questions in issue [18] Although framed differently by the parties, the following issues arise from the application for judicial review:
a) Is this application for judicial review out of time?
b) What is the appropriate standard of review?
c) Is the CMA’s continued refusal to provide copies of unredacted decisions subject to a publication ban lawful?
d) What remedies should be awarded, if any?
V. Analysis A. Is the application for judicial review out of time? [19] The Attorney General of Canada [AGC] submits that the application for judicial review was brought outside of the thirty (30) day time limit prescribed in subsection 18.1(2) of the Federal Courts Act, RSC 1985, c F-7. The decision refusing to provide unredacted court martial decisions was initially communicated to Ms. Houlihan on June 12, 2013, and again on August 2, 2013, when she was advised that decisions under publication ban had to be severed to remove any information which could potentially identify a complainant or a witness. The AGC states that the CBC took no steps to challenge that decision until April 2014 and provided no explanation for the delay in pursuing the matter. The AGC also submits that even after the fourteen (14) decisions at issue were provided to Ms. Houlihan on March 26, 2014, the CBC waited until October 8, 2014, to file its Notice of Application for judicial review in this Court. The CBC’s decision to bring an application before the Office of the Chief Military Judge in April 2014 does not justify the CBC’s failure to abide by the statutory thirty (30) day limitation period.
[20] The CBC argues that the AGC’s objection is itself time-barred because Prothonotary Tabib directed the Registry of the Federal Court on October 9, 2014 to accept the CBC’s Notice of Application for filing. The CBC also argues that in any event, the AGC’s objection is without merit for the following reasons. First, the CBC exhausted “the internal avenues of accountability within the military justice system” in raising the matter with the Office of the Chief Military Judge. Secondly, the thirty (30) day limitation period in subsection 18.1(2) of the Federal Courts Act applies to “a decision or order” of a federal administrator. Judicial review is also available where there is a continuing course of conduct that is illegal and will continue unless the Court intervenes. Third, even if subsection 18.1(2) of the Federal Courts Act is applicable, this would be a proper case for the Court to grant an extension of time for the filing of the judicial review application. Finally, dismissing the judicial review application would achieve no practical benefit because the CBC or another party could make similar requests in the future and seek judicial review of the CMA’s decision.
[21] I agree with the CBC that the subject-matter of the application for judicial review is a continuing course of conduct and as a result, the application for judicial review is not time-barred.
[22] It is well established in jurisprudence that an application for judicial review under section 18.1 of the Federal Courts Act can encompass more than just a “decision or an order”. Pursuant to subsection 18.1(1), an application may be brought by “anyone directly affected by the matter in respect of which relief is sought”. The word “matter” can include a course of conduct in respect of which a remedy may be available under section 18 of the Federal Courts Act (Krause v Canada, [1999] 2 FC 476 at para 21, [1999] FCJ No 179 (FCA) (QL) [Krause]; May v CBC/Radio Canada, 2011 FCA 130 at para 10 [May]; Airth v Canada (National Revenue), 2006 FC 1442 at paras 9, 10 [Airth].
[23] The thirty (30) day limitation period to bring an application for judicial review set out in subsection 18.1(2) of the Federal Courts Act applies only “in respect of a decision or an order of a federal board, commission or other tribunal”. Where the application for judicial review is not in respect of a “decision or order”, the time limit imposed by subsection 18.1(2) does not apply (Krause at paras 23, 24; May at para 10; Airth at para 5; Telus Communications Company v Canada (Attorney General), 2014 FC 1 at paras 28, 29).
[24] The parties agree, and I concur, that there is no dispute that the CMA constitutes a “federal board, commission or other tribunal” within the meaning of subsections 2(1), 18(1) and 18.1(2) of the Federal Courts Act. The CMA’s refusal to provide unredacted copies of the requested decisions and access to court martial records is an administrative one and one that is subject to judicial review by this Court.
[25] The issue, however, is whether the CBC is seeking judicial review of a “decision or order” or of a “matter”.
[26] The CBC is challenging the CMA’s continued refusal to provide unredacted copies of court martial decisions subject to a publication ban. The application for judicial review does not arise from a single decision of the CMA. Rather, the CBC requested a number of decisions involving a publication ban at different times, and on each occasion, the CMA informed the CBC that it was required, pursuant to the publication ban, to remove any information that could disclose the identity of the complainant or a witness in the case. In my view, it is the ongoing practice of the CMA to redact the court martial decisions subject to a publication ban that is alleged to be unlawful and subject to judicial review.
[27] Moreover, the relief sought by the CBC in its Notice of Application for judicial review also confirms that it is a course of conduct that is at issue: the relief sought includes a declaration that the Privacy Act does not apply to the court records of the courts martial, as well as an order of mandamus for the CMA to provide the CBC with unredacted copies of the requested decisions. While I recognize that the CBC is also seeking an order setting aside the decision of the CMA refusing to release unredacted copies of the fourteen (14) court martial decisions, I do not think this particular relief takes away from the conclusion that it is a course of conduct that is at issue. Fundamentally, the CBC is contesting the CMA’s practice of redacting court martial decisions that are subject to a publication ban.
[28] Even if I were to find that the CBC was late in bringing its application for judicial review, I consider this to be a proper case in which to grant an extension of time.
[29] The four (4) factors to be considered in determining whether or not to grant an extension of time are set out in Canada (Attorney General) v Hennelly, [1999] FCJ No 846 at para 3 (FCA) (QL). To be successful, an applicant must demonstrate: 1) a continuing intention to pursue his or her application; 2) the application has some merit; 3) no prejudice to the respondent arises from the delay; and 4) a reasonable explanation for the delay exists.
[30] Here, the CBC has demonstrated a continuing intention to pursue the matter by its application to the Office of the Chief Military Judge. In addition, on June 23 and September 20, 2014, the CBC inquired whether any copy existed of the Chief Military Judge’s Policy on the Publication of Court Martial Information. A response to the query was received on September 23, 2014 and the CBC filed its Notice of Application for judicial review on October 9, 2014. The CBC has repeatedly taken the position that the CMA had no authority to redact information from the court martial decisions.
[31] There is also merit to the application given that the open court principle has long been recognized by the courts as a cornerstone of democracy. Moreover, the AGC has not demonstrated any prejudice arising from the timing of the application. In fact, the AGC took no position on the CBC’s request for an extension of time. Finally, the CBC’s explanation that it wanted to exhaust the internal avenues of the military justice system prior to bringing an application for judicial review before this Court is reasonable in the circumstances of this case.
[32] While not specifically a factor in considering whether to grant an extension of time, I see no benefit to concluding that the application for judicial review is out of time. Nothing would prevent the CBC from requesting access to a different court martial decision that is subject to a publication ban and then seek judicial review of any decision refusing to provide access to an unredacted version of the said decision. If that were the case, the very same conduct would be at issue. Since the parties have already argued the merits of the application, I consider that deciding the matter at this time would be a more efficient use of the Court’s resources (Airth at para 12).
B. What is the appropriate standard of review? [33] The first step in determining the appropriate standard of review is to establish whether the existing jurisprudence has already settled, in a satisfactory manner, the degree of deference to be afforded to a particular category of question. If it has not, the reviewing court must then proceed to conduct a contextual analysis of the decision to determine the appropriate standard of review and consider a number of relevant factors, including: 1) the presence or absence of a privative clause; 2) the purpose of the tribunal; 3) the nature of the question at issue; and 4) the expertise of the tribunal (Dunsmuir v New Brunswick, 2008 SCC 9 at paras 57, 62, 64, [2008] 1 SCR 190 [Dunsmuir]).
[34] The CBC submits that the question of whether the Privacy Act applies to the records of courts martial without consideration for the open court principle raises a question of law that must be assessed on a correctness standard of review. The CBC relies on the Federal Court of Appeal decision in CMP v CMJ where the Court found that the decision of the Chief Military Judge refusing to convene a court martial on the basis that it would offend the open court principle raised a question of law reviewable on a correctness standard of review.
[35] The AGC submits that the appropriate standard of review is reasonableness. The decision in CMP v CMJ is not determinative as the decision refers to a decision of the Chief Military Judge, a judicial officer, and not the CMA. Furthermore, the decision predates the reformulation of the two-step standard of review analysis set out in Dunsmuir.
[36] In CMP v CMJ, the Federal Court of Appeal examined the open court principle in the context of the Chief Military Judge’s refusal to assign a military judge because the charge sheet and accompanying documentation contained classified information. The Chief Military Judge was of the view that assigning a judge where a charge sheet is classified would be the same as sanctioning a closed trial. Given this refusal, the CMA refused to convene a Standing Court Martial because she could not identify the military judge whose name would appear on the order.
[37] In the case before me, the CBC is challenging the CMA’s continued refusal to release unredacted court martial decisions in which a publication ban was ordered. The CMA’s position is that in order to comply with the publication bans and the Privacy Act, it must redact any information that would identify the complainants before releasing copies of the decisions to the CBC. With the exception of the decision in CMP v CMJ, which is not directly on point, I am not aware of any other precedent involving a decision of the CMA on the issues raised in this proceeding. Accordingly, the second step in the Dunsmuir analysis is required.
[38] Upon review of the relevant factors, I conclude that the appropriate standard of review is that of correctness.
[39] First, the duties of the CMA are mainly administrative and its decisions are not protected by a privative clause in the NDA. I recognize, however, that the absence of a privative clause is not determinative (Dunsmuir at para 52; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 25, [2009] 1 SCR 339).
[40] Second, although the court martial regime is unique and the CMA has expertise in its administration, the interpretation of a publication ban does not involve the interpretation of the CMA’s home statute. Rather, it involves the interpretation of the term “publish” as found in the Criminal Code provisions relating to publication bans in proceedings involving sexual offences. This issue is not exclusive to the CMA. Moreover, the determination of whether the disclosure prohibitions in the Privacy Act apply to the records of courts martial is also a question of law. With respect to both questions, the CMA’s expertise is not superior to that of this Court or any other superior court.
[41] Third, as stated above, the CMA’s role is entirely administrative in nature and its purpose is to manage the Office of the Chief Military Judge and to supervise the personnel within that office, with the exception of the military judges. The CMA does not decide issues of law.
[42] Finally, the nature of the question at issue is one that is of central importance to the legal system. The determination of whether publication bans under the Criminal Code require that decisions or court records be redacted prior to their release to a member of the public is one that arises not only in the court martial regime but in all criminal trials involving the prosecution of sexual offences where a publication ban has been ordered. It also involves consideration of two (2) competing interests, the open court principle and the protection of privacy, both of which are entrenched in our Canadian judicial system.
C. Is the CMA’s continued refusal to provide copies of unredacted decisions subject to a publication ban lawful? [43] The CBC submits that the open court principle applies to courts martial and that it extends to all facets of the court martial process, including exhibits and the record of its proceedings. It is also applicable after the proceedings have concluded. A publication ban constitutes a limited restriction on the open court principle. When a trial judge imposes a publication ban on the identity of a complainant, the public and the media are not excluded from the courtroom and they retain access to the court’s proceedings and records. Although Parliament has expressly provided for more severe restrictions on public access to court proceedings, such as in camera proceedings or the sealing of court files, a publication ban does not constitute a sealing order.
[44] The CBC further submits that even if the CMA had the authority to expand the scope of the publication ban, the CMA failed to apply the test enunciated by the Supreme Court of Canada in Dagenais v Canadian Broadcasting Corp, [1994] 3 SCR 835 at para 73 (QL) [Dagenais] and reframed in R v Mentuck, 2001 SCC 76 at para 32, [2001] 3 SCR 442 [Mentuck], which set out the conditions under which the courts may limit the openness of court proceedings. If the CMA had applied the test, no potential justification would meet the criteria of the test.
[45] The AGC submits that the CMA properly redacted the names of complainants in six (6) court martial decisions. In each of the fourteen (14) courts martial, the presiding military judge imposed a publication ban pursuant to subsections 486(3), 486(4) or both, of the Criminal Code (as they read in 2004). While commonly referred to as a “publication ban”, the current statute refers not only to publication, but also to broadcasting or transmitting information. Once ordered, publication bans are mandatory and continue to be in force until lifted by a court where it has been demonstrated that the circumstances have dramatically changed. Absent an order lifting the ban, it is not open to the CMA to ignore the requirement imposed by the military judges not to publish the names of the complainants in a publicly available court decision.
[46] The AGC further submits that the predominant purpose of a section 486 publication ban is to protect the privacy of complainants and to foster confidence in the justice system. Allowing the publication and dissemination of court martial decisions that identify the complainants would run counter to the objective and purpose of a publication ban. The prohibition must be read purposively as requiring a restriction on identifying the complainants on any document which will link them to the facts of the case.
[47] The AGC also submits that the Dagenais/Mentuck framework is not applicable as the CBC is not challenging the legality of the publication ban and nothing in the CMA’s conduct has infringed the CBC’s freedom of expression.
[48] Finally, the AGC argues that the open court principle has never been extended to include the right of the media to contact victims of crime outside of court room proceedings years after the trials have concluded. In the case at bar, the CBC is fully capable of reporting on the court martial proceedings. It received all fourteen (14) decisions and the documents received allow the CBC to know what transpired in court. Obtaining the names of the complainants will not add to its understanding of the proceedings.
[49] In my view, the CMA erred in finding that the publication bans required the redaction of the names of the complainants when providing access to the requested court martial decisions. I have reached this conclusion following an analysis of the open court principle, publication bans, both generally and in the context of the Criminal Code, limitations on the open court principle, the distinction between “publishing” and “accessing” information in a court record and the application of the Privacy Act to the records of the courts martial, all of which I will examine in the paragraphs below.
(1) The open court principle [50] The Supreme Court of Canada has repeatedly affirmed the importance of the open court principle. Starting in 1982, Justice Dickson wrote in MacIntyre v Nova Scotia (Attorney General), [1982] 1 SCR 175 (WL) at para 59, “covertness is the exception and openness the rule” and, at para 62, “the rule should be one of public accessibility and concomitant judicial accountability”. Later, in Canadian Broadcasting Corp v New Brunswick (Attorney General), [1996] 3 SCR 480 at para 22 [New Brunswick], Justice La Forest described the open court principle as “one of the hallmarks of a democratic society” and at para 23, “[o]penness permits public access to information about the courts, which in turn permits the public to discuss and put forward opinions and criticisms of court practices and proceedings”. In 2005, in Toronto Star Newspapers Ltd v Ontario, 2005 SCC 41 at para 1, [2005] 2 SCR 188 [Toronto Star Newspapers], Justice Fish wrote: “[i]n any constitutional climate, the administration of justice thrives on exposure to light — and withers under a cloud of secrecy”. More recently, in Canadian Broadcasting Corp v Canada (Attorney General), 2011 SCC 2 at para 1, [2011] 1 SCR 19, Justice Deschamps commented as follows:
The open court principle is of crucial importance in a democratic society. It ensures that citizens have access to the courts and can, as a result, comment on how courts operate and on proceedings that take place in them. Public access to the courts also guarantees the integrity of judicial processes inasmuch as the transparency that flows from access ensures that justice is rendered in a manner that is not arbitrary, but is in accordance with the rule of law.
See also Edmonton Journal v Alberta (Attorney General), [1989] 2 SCR 1326 at paras 9 to 11, [1989] SCJ No 124 (QL); Vancouver Sun (Re), 2004 SCC 43 at paras 23 to 27, [2004] 2 SCR 332; Canadian Broadcasting Corp v The Queen, 2011 SCC 3 at para 12, [2011] 1 SCR 65 [Canadian Broadcasting Corp], and AB v Bragg Communications Inc, 2012 SCC 46 at paras 11, 13, [2012] 2 SCR 567 [Bragg Communications Inc].
[51] The open court principle applies to all facets of a court’s process. It also includes access to the exhibits and the audio recordings of hearings (Canadian Broadcasting Corp at para 12; Singer v Canada (Attorney General), 2011 FCA 3 (QL) at para 6).
[52] It is undisputed that the open court principle applies to courts martial. It is prescribed by section 180 of the NDA. The military judge assigned to preside a court martial trial will be required, like any other judge, to weigh a claim for non-disclosure against the open court principle and to determine whether the information should be made available to the public (CMP v CMJ at para 38).
(2) Publication bans [53] While the open court principle has been recognized as a pillar of a democratic society, the courts have also consistently affirmed that other interests, such as the privacy of sexual assault complainants, are equally as important (Canadian Newspapers Co v Canada (Attorney General), [1988] 2 SCR 122 at para 15 (QL) [Canadian Newspapers]; Bragg Communications Inc at paras 11, 17, 25, 29).
[54] In order to accommodate these competing interests, the courts have used a number of measures to minimally impair the open court principle and still protect other interests. A publication ban is one of several forms of relief which limit the open court principle.
[55] At page I-7 of his publication The Law of Publication Bans, Private Hearings and Sealing Orders, (Toronto, Carswell, 2006) (loose-leaf updated 2016), the author James Rossiter, defines a publication ban as “a statutory or judicial prohibition on disclosing information, usually in a publication or broadcast, which is the subject of the ban”.
[56] A publication ban can be mandatory or discretionary. If mandatory, it can be automatic or at the request of a party. If discretionary, it may be either based in statute or the common law. The ban may also be limited in time or of infinite duration (Rossiter at I-7 and I-8).
[57] In Dagenais above, Chief Justice Lamer enumerated a number of advantages which result from ordering publication bans. They include: 1) preventing jury influence; 2) maximizing the chances that witnesses will come forward and testify; 3) protecting vulnerable witnesses; 4) preserving the privacy of individuals involved in a criminal process; 5) maximizing the chances of rehabilitation for young offenders; 6) encouraging the reporting of sexual offences; 7) saving the financial and/or emotional costs to those involved of the alternatives to publication bans, such as trial delays and changes in venues; and 8) protecting national security (Dagenais at para 83). He also highlighted some of the reasons for not ordering a publication ban. In particular, the absence of a ban will: 1) maximize the chances that individuals will learn about a case and come forward with new information; 2) prevent perjury by placing witnesses under public scrutiny; 3) prevent state and/or court wrongdoing by placing the criminal justice process under public scrutiny; 4) reduce crime through the public expression of disapproval for crime; and 5) promote the public discussion of important issues (Dagenais at para 84).
[58] In the context of sexual offence trials, publication bans also have the purpose of protecting the privacy of the complainants. In Canadian Newspapers, the Supreme Court of Canada confirmed that publication bans in sexual assault proceedings foster complaints by victims of sexual assault by protecting them from the trauma of wide-spread publication resulting in embarrassment and humiliation. Publication bans encourage victims to come forward and complain which in turn facilitates the prosecution and conviction of those guilty of sexual offences (Canadian Newspapers at para 15).
[59] Where a publication ban is discretionary, the judge is required to apply the Dagenais/Mentuck test enunciated by the Supreme Court of Canada in considering whether a publication ban should be ordered. A publication ban should only be ordered when it is: 1) necessary to prevent a serious risk to the proper administration of justice because reasonable alternative measures will not prevent the risk; and 2) the positive effects of the ban outweigh the negative effects on the rights and interests of the parties and public, including the effects on the right to free expression, the right of an accused to a fair and public trial and the efficacy of the administration of justice (Mentuck at para 32). If the publication ban is mandatory, no balancing of interests is required.
[60] In 2004, publication bans in proceedings involving sexual offences were ordered pursuant to subsections 486(3) and 486(4) of the Criminal Code which read:
486(3) Subject to subsection (4), the presiding judge or justice may make an order directing that the identity of a complainant or a witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way, when an accused is charged with…
486(4) The presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant to proceedings in respect of an offence mentioned in subsection (3) of the right to make an application for an order under subsection (3); and
(b) on application made by the complainant, the prosecutor or any such witness, make an order under that subsection.
[Emphasis added.]
[61] Today, they are governed by section 486.4 of the Criminal Code:
486.4 (1) Subject to subsection (2), the 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:
[…]
486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
[Emphasis added.]
[62] Although the Criminal Code now refers to “transmitting” information in addition to publishing and broadcasting the information, I do not consider that the change in legislation affects the outcome of this application for judicial review.
(3) Other limitations on the open court principle [63] In addition to publication bans, there are a number of other forms of relief that the courts may use to limit the open court principle.
[64] For instance, closed hearings, otherwise referred to as in camera hearings or exclusion orders, restrict public attendance at a hearing. They are more restrictive than publication bans because they have the effect of ensuring that the public will not be able to disclose what occurred at the hearing. This form of limitation on the open court principle can be based in statute (Criminal Code, subsection 486(1)) or in common law based on a judge’s inherent jurisdiction (Named Person v Vancouver Sun, 2007 SCC 43 at paras 56, 91, 96, [2007] 3 SCR 253 [Vancouver Sun]; Rossiter at I-11 and I-12).
[65] A sealing order, also known as a confidentiality order, restricts public access to information found in a court record. Generally, when a sealing order has been issued, the confidential information will be placed in a separate envelope kept by the Court and will not be accessible to the general public for review (Vancouver Sun at paras 91, 95; Toronto Star Newspapers Ltd at para 18; Rossiter at I-13 and I-14).
[66] Courts have also ordered that certain types of information be blacked-out, redacted or edited from public documents found on the public court record. In doing so, the public has access to the documents but the sensitive information is protected (R v Twitchell, 2009 ABQB 644 (QL) at para 45 [Twitchell].
[67] An anonymity order can also be requested by the parties, in which case initials or a pseudonym will be used in court filings and during the hearing. An anonymity order will allow the public to attend the hearing and to review the court records but will prevent it from knowing the identity of the person claiming anonymity. For instance, in Bragg Communications Inc, the applicant had brought an application for an order requiring an Internet service provider to disclose the identity of the person who had used an IP address to publish a Facebook profile, which included her picture, a modified version of her name and other particulars identifying her. She asked the court for permission to proceed anonymously and for a publication ban on the content of the Facebook profile. On appeal, the Supreme Court of Canada agreed that she could proceed anonymously. It also found that a publication ban was not required if her identity was protected (Bragg Communications Inc at paras 9 and 30; see also Rossiter at I-14 and I-15).
[68] The courts may also order that a witness testify behind a screen or other device that will protect the image of the witness from members of the public (Criminal Code, subsection 486(1); Vancouver Sun at para 56).
[69] These examples are by no means exhaustive. However, in each case, the Court will seek to minimally impair the open court principle to ensure that the public retains as much access as possible to the court’s proceedings.
(4) “publish” versus “access” [70] The courts have distinguished the concept of publication from that of providing access. In MacDonell c Flahiff, 1998 CanLII 13149 (QC CA) [MacDonell], two (2) appellants appealed an order allowing access to certain search warrants due to prejudice to their right to a fair trial. The Court of Appeal of Québec concluded that it was not accessing the documents which threatened their right to a fair trial, but the possibility of p