When can public access to the Court record be restricted? Rarely

M.E.H. v. Williams, 2012 ONCA 35 deals with the order sealing the entire record in the divorce proceeding of Colonel Williams. The Court disallowed the order and writes:

(ii) The Motion Judge's Reasons

[21]         The motion judge appreciated that the order sought was an extraordinary one in that it would compromise the open court principle, which she described (at para. 6), as one of "fundamental importance... to our democratic society".  She approached her task using the two-step approach identified in a series of cases from the Supreme Court of Canada involving non-publication orders and/or sealing orders:  see Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188, at para. 26; Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522, at paras. 45-46; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, at para. 32.  This approach is commonly referred to as the Dagenais/Mentuck test.

[22]         In Mentuck, Iacobucci J. said, at para. 32:

A publication ban should only be ordered when:

(a)  such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and

(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.
...

[24]         The first branch of the two-part inquiry set out in Mentuck, described as the "necessity" branch, is the focus of this appeal.  Before turning to the evidence, I will set out some of the important features of that branch of the test.

(i)    There Must be a Public Interest at Stake

[25]         Mentuck describes non-publication and sealing orders as potentially justifiable if "necessary in order to prevent a serious risk to the proper administration of justice".  A serious risk to public interests other than those that fall under the broad rubric of the "proper administration of justice" can also meet the necessity requirement under the first branch of the Dagenais/Mentuck test:  Sierra Club of Canada, at paras. 46-51, 55.  The interest jeopardized must, however, have a public component.  Purely personal interests cannot justify non-publication or sealing orders.  Thus, the personal concerns of a litigant, including concerns about the very real emotional distress and embarrassment that can be occasioned to litigants when justice is done in public, will not, standing alone, satisfy the necessity branch of the test:  A.G. (Nova Scotia) v. MacIntyre, [1982] 1 S.C.R. 175, at p. 185; Sierra Club of Canada, at para. 55; A.B. v. Bragg Communications Inc., 2011 NSCA 26, 301 N.S.R. (2d) 34, at paras. 73-75.

[26]         The respondent framed her claim in terms of her right to gain access to the courts to seek legal redress.  I agree with her contention that access to the courts is an essential component of the "proper administration of justice".  There is no need to give any further consideration to other interests which may qualify under the first branch of the Dagenais/Mentuck test.

[27]         There can be no doubt that an individual's right to seek and obtain appropriate relief in a court proceeding is a matter of significant public interest impacting on the proper administration of justice.  The public interest in access to the courts for legal relief is particularly important where that access is required to give legal effect to a decision as integral to personal autonomy as the decision to seek a divorce.  If insisting on the openness usually demanded of court proceedings will effectively close the courtroom door to a litigant because of the physical and/or emotional consequences to that litigant of maintaining the openness of the courts, I am satisfied that the first component of the Dagenais/Mentuck test would be made out assuming that there was no reasonable alternative to some limit on the openness of the courts.  The court would then have to go on and address the competing interests under the second component of that test before deciding what limit, if any, would be placed on the openness of the courts.

[28]         Counsel for the appellants accepted that access to the courts is a matter of public interest that affects the proper administration of justice.  He submitted that the public interest is engaged only where it is established that the litigant would not go to court absent the privacy protections afforded by the non-publication and sealing orders. 

[29]         In my view, it is not necessary that a litigant establish that he or she would not go to court absent the privacy protections requested.  Access to the courts should not come at the cost of a substantial risk of serious debilitating emotional or physical harm to the party seeking access.  Access to the courts at that cost would be more illusory than real. 

[30]         The distinction between personal emotional distress and embarrassment, which cannot justify limiting publication of or access to court proceedings and records, and serious debilitating physical or emotional harm that goes to the ability of a litigant to access the court is one of degree.  Expert medical opinion firmly planted in reliable evidence of the specific circumstances and the condition of the litigant will usually be crucial in drawing that distinction:  see Re: John Doe P.A.B.D. #1, 2005 NLTD 214, at para. 43.

(ii)  The Necessity Inquiry Comes First

[31]         The necessity branch focuses exclusively on the existence of a serious risk to a public interest that can only be addressed by some form of non-publication or sealing order.  The potential benefits of the order are irrelevant at this first stage of the inquiry:  Mentuck, at para. 34.  Unless a serious risk to a public interest is established, the court does not proceed to the second branch of the inquiry where competing interests must be balanced.    

[32]         As there is no balancing of competing interests at the first stage, it is wrong at that stage to consider the extent to which the societal interests underlying and furthered by freedom of expression and the open court principle are engaged in that particular case.  Even if those values are only marginally engaged (the respondent's submission in this case), restriction on media access to and publication in respect of court proceedings cannot be justified unless it is necessary to prevent a serious risk to a public interest.  A court faced with a case like this one where decency suggests some kind of protection for the respondent must avoid the temptation to begin by asking: where is the harm in allowing the respondent to proceed with some degree of anonymity and without her personal information being available to the media?  Rather, the court must ask: has the respondent shown that without the protective orders she seeks there is a serious risk to the proper administration of justice? 

(iii)  Freedom of Expression and the Open Court Principle

[33]         In approaching the necessity branch of the inquiry, the high constitutional stakes must be placed at the forefront of the analysis.  Freedom of expression, including freedom of the press and other media communications, is a constitutionally protected fundamental freedom.  The constitutional right to freedom of expression protects the media's access to and ability to report on court proceedings.  The exercise of this fundamental freedom in the context of media coverage of court proceedings is essential to the promotion of the open court principle, a central feature of not only Canadian justice, but Canadian democracy: Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2, [2011] 1 S.C.R. 19, at paras. 1-2; Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at para. 26; Ottawa Citizen Group Inc. et al. v. R. (2005), 75 O.R. (3d) 590 (C.A.), at paras. 50-55; R. v. Canadian Broadcasting Corporation, 2010 ONCA 726, 102 O.R. (3d) 673, at paras. 22-24.

[34]         Limits on freedom of expression, including limits that restrict media access to and publication of court proceedings, can be justified.  However, the centrality of freedom of expression and the open court principle to both Canadian democracy and individual freedoms in Canada demands that a party seeking to limit freedom of expression and the openness of the courts carry a significant legal and evidentiary burden.  Evidence said to justify non-publication and sealing orders must be "convincing" and "subject to close scrutiny and meet rigorous standards": R. v. Canadian Broadcasting Corp., at para. 40; Toronto Star Newspapers Ltd. v. Ontario (2003), 67 O.R. (3d) 577 (C.A.), at para. 19, aff'd 2005 SCC 41, [2005] 2 S.C.R. 188, at para. 41; see also Ottawa Citizen Group, at para. 54.