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Open Court - Publication Ban. R. v. Reimer
In R. v. Reimer (Ont CA, 2024) the Ontario Court of Appeal considered a motion for a Crown publication ban "pending a proposed application for leave to appeal to the Supreme Court of Canada":[4] In the publication ban decision, this court declined the Crown’s request for a discretionary publication ban in relation to the substantive decision “prohibiting the publication, broadcast or transmission of any information about or reference to the nature of the sexual activity of the complainant which is at issue in this proceeding, other than that which forms the subject-matter of the charge”.
[5] The Supreme Court of Canada ordered such a ban in its recent decision in T.W.W.: see paras. 77 and 82. Applying the test articulated in Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75, at para. 38,[1] and drawing on the legislative context and objectives of the s. 276 regime, this court was not satisfied that a publication ban was necessary or proportional. This court acknowledged that publication of details of the other sexual activity at issue poses a serious risk to the complainant’s personal privacy and dignity and that these are important public interests. However, this court found that that risk had been sufficiently addressed by various alternative measures, which it described.[2] This court concluded that the requirement that justice be seen to be done and the precedential value of the decision strongly supported publication. Several grounds of appeal involved determinations of relevance. If the factual details of the other sexual activity evidence identified in the decision were not made public, the justice of the decision and its precedential value would remain opaque. In all the circumstances, this court concluded that a publication ban would not be proportional.
[6] To date, this court has released the substantive decision to the parties only.[3] However, because the publication ban decision did not refer to the nature of the other sexual activity evidence,[4] that decision was released in the normal course and published on the court’s website.
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[27] .... In applying the first step of the Sherman test in the publication ban decision, this court focused on the risk that publication would pose to the complainant’s personal privacy and dignity. Whether a court considering a T.W.W. discretionary publication ban should also consider the potential chilling effect of publication on future complainants has at least arguable merit and is a question of sufficient importance to warrant the Supreme Court’s consideration.
[28] Similarly, taking account of the references to other sexual activity in T.W.W., and the fact that T.W.W. has been published on both the Supreme Court’s website and on CanLII[6], the Crown’s submission that a T.W.W. discretionary publication ban does not prevent an appeal court from publishing on its own website reasons that include references to other sexual activity in the ordinary course has arguable merit. As the Crown asserts that this court misunderstood its position – and the law – the second question is also of sufficient importance to warrant the Supreme Court’s consideration.
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(2) Irreparable harm
[29] The Crown submits that simply publishing the substantive decision without redactions or a publication ban could lead to widespread media publication of the sexualized text messages reproduced at paragraphs 66-68 of the substantive reasons. This, says the Crown, could lead to irreparable harm to the privacy and dignity of the complainant in this case. Further, says the Crown, if it is correct in its interpretation of a T.W.W. discretionary publication ban but no measures are taken to preserve its right to have the substantive decision published in the ordinary course, but subject to the publication ban, its appeal rights in relation to the publication ban decision will effectively be rendered moot.
[30] The Crown submits that, properly interpreted, a T.W.W. discretionary publication ban would prohibit any media publication of the sexualized text messages if this court were to publish the substantive decision on its website in the normal course. Given the difficulties in understanding the scope and application of a temporary T.W.W. discretionary publication ban, the Crown is now asking that the court publish a temporarily redacted version of the substantive judgment, i.e., with paragraphs 66-68 redacted, pending the outcome of the Supreme Court litigation.
[31] We are satisfied that the Crown has established irreparable harm would occur if it is denied the partial stay sought. Although we are sceptical that the complainant in this case would suffer significant harm because of the alternative measures that are in place to prevent the sexualized text messages from being connected to her, we do not dispute that media publication of the verbatim sexualized text messages reproduced at paragraphs 66-68 of the substantive decision could cause her anxiety and that that harm could not be undone if a publication ban is subsequently imposed. We also accept that the Crown’s appeal rights in relation to the publication ban decision would be rendered moot if the partial stay is not granted.
(3) Balance of Convenience
[32] We are satisfied that the balance of convenience favours granting the partial stay the Crown now seeks.
[33] As we have explained, the Crown has demonstrated irreparable harm will occur if a partial stay is not granted. Further, at this stage we are also entitled to consider the public interest: RJR-MacDonald Inc., at pp. 343-47. Although that case was decided in the context of constitutional litigation, we are satisfied that the overall justice of this case warrants consideration of the public interest at this stage. In that respect, we cannot discount the possibility that widespread media publication of the sexualized text messages could have an immediate chilling effect on some future complainants by causing them to lose faith in the administration of justice.
[34] On the other hand, we also acknowledge that the sexualized text messages reproduced verbatim at paragraphs 66-68 of the substantive decision provide important context for the relevance assessment made by this court. Moreover, that context is important to permitting adequate public scrutiny of the decision so that justice can be seen to be done, and also to the precedential value of the substantive decision. . P1 v. XYZ School
In P1 v. XYZ School (Ont CA, 2021) the Court of Appeal considered the open court principle in a case where the media sought the lifting of part of a banning order:[23] Though sealing orders are normally interlocutory as concerns the parties to the litigation, in this case the non-party’s substantive rights are finally determined by the order. The rights are constitutional in nature and guaranteed by s. 2(b) of the Charter. They are finally determined because the sealing order precludes the ability of the Toronto Star to contemporaneously access, report and scrutinize all stages of a proceeding on behalf of the public.
[24] The freedom of the press has been historically recognized by the Supreme Court as a fundamental right in Canada. As Lamer C.J. wrote in the leading case, Dagenais v. Canadian Broadcasting Corp. (1994), O.R. (3d) 816, at p. 876, “a fundamental principle of our justice system … freedom of expression, including freedom of the press, is now recognized as a paramount value in Canadian society, as demonstrated by its enshrinement as a constitutionally protected right in s. 2(b) of the Charter.”
[25] The Supreme Court has found that the open court principle is “bound up” with the constitutionally protected right of freedom of the press and is a public good: see Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33, at paras. 3, 46.
[26] The importance of the open court principle has been recently re-affirmed in Sherman Estate v. Donovan, 2021 SCC 25, 458 D.L.R. (4th) 361, at paras. 1-2:This Court has been resolute in recognizing that the open court principle is protected by the constitutionally‑entrenched right of freedom of expression and, as such, it represents a central feature of a liberal democracy. As a general rule, the public can attend hearings and consult court files and the press — the eyes and ears of the public — is left free to inquire and comment on the workings of the courts, all of which helps make the justice system fair and accountable.
Accordingly, there is a strong presumption in favour of open courts. It is understood that this allows for public scrutiny which can be the source of inconvenience and even embarrassment to those who feel that their engagement in the justice system brings intrusion into their private lives. But this discomfort is not, as a general matter, enough to overturn the strong presumption that the public can attend hearings and that court files can be consulted and reported upon by the free press. [27] The Toronto Star has no interest in the outcome of the litigation between the plaintiffs and the defendants. The Toronto Star’s interest is to be able to perform its function as the “eyes and ears” of the public.
[28] The facts here are analogous to those in Hollinger Inc. v. The Ravelston Corporation, 2008 ONCA 207, 291 D.L.R. (4th) 15, where this court considered an order affecting a non-party.
[29] In Hollinger, the motion judge made a sealing and protection order in respect of material filed for a Mareva injunction. The Globe and Mail sought intervener status to set aside the order. The motion judge dismissed the intervener motion. This court allowed the appeal, but for two different reasons. Two judges concluded that the motion judge’s refusal to grant intervener status for the limited purpose of challenging the order was in error and was itself a final order. They determined that the matter should be returned to the Superior Court for a new hearing and consequently there was no need to determine whether the order – standing alone – would be final or interlocutory for purposes of appeal routes. Juriansz J.A., however, squarely dealt with issue concluding that the order affecting the Globe and Mail was final. He would not have returned the matter to the Superior Court but would have granted intervener status.
[30] The reasons of Juriansz J.A. align with the situation here. At para. 52, he stated:The principle [of interlocutory or final] becomes difficult to apply when third parties, unconcerned with the merits of an action, become involved in the proceedings for a limited purpose. The Globe, in arguing the protective order was final, emphasized it was a third party uninvolved in the action. I agree this is the key to the determination of the issue.[2] [31] Juriansz J.A. went on to say at para. 54 that whether the motion judge's order maintaining the protective order is interlocutory or final depends on its effect on the rights of the Globe, considering “what was at stake for the Globe” in the motion. There, like here, what was at stake for the Globe was the ability to exercise its routine right of access to a court file, based on freedom of the press. Here, what is at stake for the Toronto Star is freedom of the press. . Canadian Broadcasting Corp. v. Manitoba
In Canadian Broadcasting Corp. v. Manitoba (SCC, 2021) the Supreme Court of Canada considered lifting a publication ban when the Court of Appeal had ruled below that they were functus officio:[62] It is best to note at the outset that appellate jurisdiction, such as that being exercised by the Court of Appeal in the proceeding below, must be grounded in legislation (R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385, at para. 21). In addition to any explicit grant, statutory and appellate courts should be understood to have the implicit power to control their own process and exercise other powers that are practically necessary to accomplish the role the law assigns them (R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 19; Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, at para. 27 (CanLII)). I agree with the Attorney General of British Columbia that it may be unhelpful to describe this implicit authority as “inherent jurisdiction” given that appellate powers are, ultimately, rooted in statute (transcript, at pp. 100‑1).
[63] The legislative foundation for the Court of Appeal’s jurisdiction over the motion on court openness is plain here. As I have said, the supervisory jurisdiction over the court record is a feature of all courts (MacIntyre, at p. 189) and this is no less true of an appellate court. As part of the court’s authority to control its own process, the power over the openness of proceedings and over the court record arises here by necessary implication from the legislative grant of the appellate court’s adjudicative authority (see, generally, Cunningham, at para. 19). As a matter of procedural necessity — a publication ban or a sealing order may remain in place long after the substance of the appeal has been decided — this jurisdiction continues even after the formal judgment on the merits of a given appeal has been entered unless ousted by legislation. The Court of Appeal therefore had continuing, ancillary jurisdiction to consider the CBC’s motion regarding sealing orders and publication bans. This included implied jurisdiction to vary or vacate its orders limiting court openness in accordance with the common law principles considered above. The only remaining question is whether any applicable legislation limits this jurisdiction for the Court of Appeal in this case.
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[77] Turning to the substance of the CBC’s motion, any discretionary limits on access to and publication of the contents of the court record must be understood in reference to the test from Sierra Club as recently recast by this Court in Sherman. Court proceedings are presumptively open to the public (A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567, at para. 11). A court can order discretionary limits on openness only where (1) openness poses a serious risk to an important public interest, (2) the order sought is necessary to prevent that risk and (3) the benefits of the order outweigh its negative effects (Sherman, at para. 38, citing Sierra Club, at para. 53).
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[83] Consistent with this purpose, all materials that are made available to the court for the purposes of deciding the case — in other words, for the purposes of exercising its judicial power — are subject to the open court principle (see Canadian Broadcasting Corp. v. R., 2010 ONCA 726, 102 O.R. (3d) 673, at paras. 42‑44; see also Aboriginal Peoples Television Network v. Alberta (Attorney General), 2018 ABCA 133, 70 Alta. L.R. (6th) 246, at para. 48). In this case, the Court of Appeal had before it a motion to admit the Posner affidavit as new evidence. .... . R. v. Reimer
In R. v. Reimer (Ont CA, 2024) the Ontario Court of Appeal dismisses a Crown motion that the successful sexual assault appeal ruling be subject to a publication ban:[2] Publication bans compromise the open court principle, therefore the discretion to impose publication bans should not be exercised lightly: T.W.W., at para. 69. Publication bans at the appeal level should therefore be “exceptional”: T.W.W., at para. 73, quoting Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75, at para. 63. The evaluation of publication ban motions begins with the presumption that courts will be open and that their decisions will be available for publication: T.W.W., at para. 71. The test articulated in Sherman Estate is to be applied, drawing on the legislative context and objectives of the s. 276 regime and the complainant’s right of privacy and the interests of justice, to determine whether that presumption has been overcome, and the onus of doing so rests with the moving party: T.W.W., at paras. 71-72. This Sherman Estate test, at para. 38, provides that the moving party must establish three things:(1) court openness poses a serious risk to an important public interest;
(2) the order sought is necessary to prevent this serious risk to the identified interest because reasonable alternative measures will not prevent this risk; and,
(3) as a matter of proportionality, the benefits of the order outweigh its negative effects. [3] The first component of the test is met. Publication of the other sexual activity evidence in this case poses a serious risk to the complainant’s personal privacy and dignity, and these are important public interests: T.W.W., at para. 74.
[4] However, the second component of the test is not met. In the particular circumstances of this case, the risks that the publication of the decision poses to the complainant’s dignity and privacy have been materially mitigated by the fact that the complainant’s name has been anonymized in the decision, unnecessary biographical information has been eliminated, the complainant had no prior or subsequent relationship with Mr. Reimer other than through private communications, and Mr. Reimer does not live in the same city as the complainant. Moreover, the s. 276 application before trial was conducted in camera, and the contents of the application as well as the evidence, the argument and the decision on the application were all subject to a publication ban below. In the circumstances, although evidence of other sexual activity involving the complainant will be published, there is little risk that this evidence will be linked to her. We recognize that the low risk that the complainant will be linked to this evidence may not entirely alleviate the complainant’s anxiety over the publication of the decision. However, we are not satisfied that the requested publication ban is necessary. The serious risk to privacy and dignity has been addressed sufficiently by the alternative measures described.
[5] The third component of the test is decisive against the requested publication ban since the benefits of the ban would not outweigh its negative effects. We have already described the mitigated negative effects of publication on the complainant’s privacy and dignity. In contrast, the negative effects that the requested publication ban would have on the open court principle are not mitigated, but significant.
[6] First, a number of the grounds of appeal addressed in this decision turn on relevance determinations, which, by their very nature, are based on the specific facts of the case. Unless the select factual details of the other sexual activity evidence identified in the decision are made available to the public, public scrutiny of this court’s decision will not be possible. The open court principle exists to ensure that justice can be seen to be done. The justness of this decision will remain opaque if the requested publication ban is imposed, and justice will not be seen to be done.
[7] Second, this decision addresses complex issues about the reach of the prohibited inference relating to consent, an issue on which lower courts require guidance. Once again, this court’s assessment of the nature of the inferences being drawn is based on a close examination of the other sexual activity evidence. The illustrative and precedential value of the decision on this point will be largely undermined if the requested publication ban is granted. The comments made by O’Bonsawin J. for the majority in T.W.W., at para. 79, relating to the role of the Supreme Court of Canada apply without modification to the decisions of this court: “Reasons from, and hearings before, this Court provide not only an explanation of an appeal’s resolution to the parties but also give meaning to the judgment’s precedential value which, through the principle of stare decisis, binds and guides lower courts in the consistent application of the law.” We do not suggest that this consideration will always trump the privacy interests of a complainant in s. 276 cases, but this particular decision addresses issues of conceptual difficulty that require appellate guidance. Given that its resolution turns so closely on the facts, the benefit of that guidance will be diminished, if not lost, by the order requested.
[8] In our view, the measures taken to protect the identity of the complainant so that she is not linked to the other sexual activity evidence contained in the decision appropriately balance the competing interests, whereas the publication ban would not be proportional.
[9] The motion is dismissed. Since our reasons on the motion do not refer to the nature of the other sexual activity evidence, they will be published in the normal course. The court’s decision on the appeal, R. v. Reimer, 2024 ONCA 519, which does refer to the nature of the other sexual activity evidence, will be published in full 10 days after the release of these reasons unless the Crown notifies us beforehand of its intention to appeal this motion decision. . Ricard v. The University of Windsor
In Ricard v. The University of Windsor (Div Ct, 2021) the Divisional Court considered a motion for a sealing order and publication ban in a judicial review application:[6] I am satisfied that this is an appropriate case for a publication ban and sealing order and that it meets the recently restated test in Sherman Estate v. Donovan, 2021 SCC 25. As held by the Supreme Court, the test requires the court to find that:a. Court openness poses a serious risk to an important public interest;
b. The order sought is necessary to prevent this serious risk to the identified interest because reasonable alternative measures will not prevent this risk; and
c. As a matter of proportionality, the benefits of the order outweigh is negative effects. [7] With respect to the first part of the test, in Sherman Estate, the Supreme Court recognized that preservation of an individual’s dignity is a matter of public interest. At para. 75, the Court held that a person’s dignity can be at risk if sensitive personal information relevant to core aspects of that person’s life are made public through court proceedings. At para 77, the Court specifically identified “subjection to sexual assault or harassment” as the type of personal sensitive information that, if exposed, could pose a serious risk to a person’s dignity. Keeping the identity of complainants confidential in the context of cases involving allegations of sexual assault is also consistent with sealing orders and publication bans made in civil cases that predate the Sherman Estate decision. For example, as held by Faieta J. in Fedeli v. Brown, 2020 ONSC 994 (Sup. Ct.), at para. 9:The privacy interests of a person who makes an allegation of sexual assault or sexual harassment in a civil proceeding is high, particularly when she has not initiated the civil proceeding. A complainant may be subject to unnecessary trauma and embarrassment, both for herself and her family, if she is identified. Without protection of her privacy interests, a person who has been sexually assaulted or sexually harassed may be unwilling to come forward. Further, the failure to afford such protection to a person alleging sexual assault or sexual harassment may deter other persons from coming forward to report sexual misconduct. Such interests are recognized and protected in a criminal proceeding as s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46, provides that an order banning publication of any information that could identify a victim of sexual assault is mandatory if sought by the Crown or victim. In my view, the policy reflected by s. 486.4 of the Criminal Code is equally applicable in these civil proceedings. [8] Accordingly, I am satisfied that there is a public interest in protecting the confidentiality of Jane Doe and other complainants involved in this case and, therefore, the order requested in this case meets the first part of the Sherman Estate’s test.
[9] I am also satisfied that the order meets the two other parts of the test. The order is necessary to prevent the risk that Jane Doe and the other complainants will be publicly identified. With one small exception addressed below, the relief sought is not overly broad. Finally, the benefits of the order sought outweigh its negative effects. Protecting the privacy interests of Jane Doe and other complainants far outweighs any minimal interest the public may have in knowing their identities. . A.A. v. Z.M.
In A.A. v. Z.M. (Ont CA, 2024) the Ontario Court of Appeal dismissed family law motions, here for a stay of a prior order that "ordered the return of the child of the marriage" and another seeking "a limited publication ban". The parties resided in Bangladesh and one had filed a refugee claim.
Here the court grants 'initializing' and 'publication ban' motions, here in the interests of children:B. Initializing the proceeding
[25] The mother seeks an order that the parties be allowed to use their initials in this proceeding. The father opposes the order, but not strongly.
[26] The open courts principle directs that all court proceedings be open and available to the public. There is however a recognized exception to that requirement and that is where the interests of children are involved.
[27] Given that the child is central to the issues raised in this proceeding, I do not see any reason not to apply that exception. The open courts principle is not seriously harmed by the use of initials in a case such as this.
[28] I therefore grant an order permitting the parties to use their initials. The mother sought a companion publication ban only with respect to any material in this court record that would identify the parties. In order to support the purpose of allowing initials to be used by the parties, such a very limited publication ban is necessary. I therefore grant an order banning the publication of any information contained in the court record that might tend to identify the parties or the child.
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