Case Comment, Canada: AM v Toronto Police Service, A presumption of notice to the media for anonymization applications? – David Potts

17 10 2015

Ontario_Superior_Court_of_JusticeIn the case of A.M. v Toronto Police Service (2015 ONSC 5684) the Divisional Court of the Ontario Superior Court of Justice examined a narrow but important question of  the obligation of notice to the media when a party is seeking an anonymization order. In this case, within an application for judicial review, the applicant AM applied  for an order permitting him to pursue the application using only his initials.

Mr Justice Nordheimer (sitting as a single Judge in the Divisional Court) held that notice had to be given to the media and he directed which media organizations, as representatives of the media as a whole, should receive that notice.  He also granted a temporary publication ban on the identity of the applicant so that the relief sought in the motion would not be rendered moot.

Judgment

Mr Justice Nordheimer noted that

“It is a fundamental principle of our court system that its proceedings, in all of their various facets, are open to the public.  This is a principle that has been stated and re-stated by the Supreme Court of Canada.  It was clearly enunciated in Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835 where the forerunner to the ultimate Dagenais/Mentuck test for the granting of publication bans was set out.  On the subject of notice to the media, it was stated in Dagenais that, where a common law publication ban was being sought, the judge “should give the media standing (if sought)” (p. 890).  Obviously the media cannot seek standing if they do not have notice of the matter.  [4]

He went on to say, however, that the decision on whether to give notice to the media appears to be a discretionary one.  There is no absolute rule that the media must be informed of a motion seeking a publication ban (citing Lamer C.J.C. in Dagenais at p. 869):

Having stated that in  law a discretion  exists , the Judge   then held that

“Even though that discretion exists, there is, in my view, a presumption that the media will be given notice of any motion where relief is sought that will have the effect of restricting the public’s, and thus the media’s, right to access court proceedings.  That presumption flows from a combination of the open court principle and the salient fact that the media is the mechanism by which members of the public are informed of the activities that take place in the courts” [6] (emphasis added).

He went on to say that the discretion called for in deciding whether to give notice to the media engages very different considerations than does the discretion that is called upon when deciding whether the restriction should be granted [16].  However, he emphasized that “the default position is that notice is to be given” [17].

The Judge noted there is presently no procedure in place in Ontario place as to whom specifically to notify the media about the requests for anonymization [18] . He  noted this  gap   in Ontario was in contrast to other provinces such as Nova Scotia, British Columbia  and Newfoundland & Labrador, where the Courts in those provinces , maintain  free e-mail subscription services to advise the media of applications made to the courts for publication bans and other similar court orders providing subscribers with an e-mail message advising that an application has been made and when and where it will be heard.

He held that in para 18

“ Until that problem is remedied, the parties will have to decide on their own or seek directions  from the court as to which media outlets they should give notice  .”

Comment

Despite the judge’s comments in this case, there is a strong argument that there is no presumption in law that the media shall be notified in all circumstances  when an applicant seeks anonymization relief

The Supreme Court of Canada has developed the adaptable (known as the Dagenais/Mentuck test) to balance freedom of expression and other important rights and interests which may include privacy and security  interests  Recently  in A.B. v. Bragg Communications Inc., ([2012] 2 SCR 567), the Supreme Court of Canada, holding  that the privacy interests of a young girl conducting a defamation and cyberbullying action was greater than the interest of the media , allowed the plaintiff to conduct the proceedings under the letters “AB”

To hold that there is a presumption  to notify the media appears to be inconsistent  with the established principles of the SCC  about the importance of the court having the discretion to  balance   competing interests

Further, there should not be a presumption requiring notice  be given to the media. The court should retain its discretion on this question as well as on the question of whether anonymization should be granted  for at least the following reasons

  • Not all court proceedings are of public interest  requiring  notice to the media for example family law proceedings involving the  distribution of family property . In fact in some situations publicity will in fact defeat the purpose of the proceedings or  subvert  the ends of justice
  • The extra cost and delay to the applicant of  being  required on every occasion  to provide notice to the media regardless of the circumstances may be arguably inconsistent with the  section 1.04 (1) of the Rules of Civil  Procedure of Ontario where the rules are to be liberally construed to secure the “ just most expeditious and least expensive  determination of every civil proceeding on its merits “ and section 1.04(1.1) on the importance of proportionality
  • The importance of proportionality on the matter of notice to the media in anonymization applications  was  discussed by Mr  Justice  Eady in  TUV v Persons Unknown [2010] EWHC 853 (QB) [26]

A further complication  caused by the presumptive approach  is ascertaining  the identity of the media  The importance of the traditional print and broadcast media is undeniable. However the Supreme Court of Canada in Grant v. Torstar Corp., [2009] 3 SCR 640, expressly recognized  ([96]) that there are other commentators and bloggers in cyberspace and that those persons are entitled to the same defences as the mainstream media.

Why should the mainstream media have automatic preference to receive Notice? How should notice be given to them without attracting abuse from the online jackals who prey on digital misfortune.  Shouldn’t the online bloggers and journalists  receive notice  in some situations, rather  than, or as well as mainstream media particularly as in jurisdictions where mainstream  court reporting resources are being reduced

The Judge clearly finds the absence of any, let alone a 21st century,  procedure, after so many years deplorable. However, with great respect, the imposition of a mandatory obligation through a presumption, creating an expensive, time consuming  process for an applicant seeking  an anonymization order, on top of a procedural gap, is unlikely to be regarded as an amelioration of this problem..

David Potts is a Canadian barrister specializing in defamation who has coauthored   “Canadian Libel Practice”  and “Canadian Libel and Slander Actions” and authored   “Cyberlibel : Information Warfare in the 21st Century?” and a revised edition entitled “Potts on Cyberlibel “

 

 

 

 


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