Wednesday, August 22, 2012

Sealing orders require an evidentiary basis

Coltsfoot Publishing Ltd. v. Foster-Jacques, 2012 NSCA 83 is a curious case where a judge, without any evidence and based on judicial notice alone sealed a court file.  The Court of Appeal said such was not proper and any sealing orders required proper evidence before the Court:

 

 

The Role of Evidence

 

[28]         There was no evidence before the judge on these motions. So whether there was a need for evidence, to traverse the open court principle, was in serious contention on this appeal. I will elaborate on the applicable principles.

 

[29]         As Justice Iacobucci said in Sierra Club (para 54), the risk “must be real and substantial, in that the risk is well grounded in the evidence, and poses a serious threat”.

 

[30]         Some years earlier, in Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1996 CanLII 184 (SCC), [1996] 3 S.C.R. 480, Justice La Forest, for the Court, elaborated on the evidentiary onus:

 

71.      The burden of displacing the general rule of openness lies on the party making the application. As in Dagenais, supra, the applicant bears the burden of proving; that the particular order is necessary, in terms relating to the proper administration of justice; that the order is as limited as possible; and, that the salutary effects of the order are proportionate to its deleterious effects. In relation to the proportionality issue, if the order is sought to protect a constitutional right, this must be considered.

 

72.      There must be a sufficient evidentiary basis from which the trial judge may assess the application and upon which he or she may exercise his or her discretion judicially. In some cases in which the facts are not in dispute the statement of counsel will suffice. If there is insufficient evidence placed before the trial judge, or there is a dispute as to the relevant facts, the appellant should seek to have the evidence heard in camera. ...

 

73.      A sufficient evidentiary basis permits a reviewing court to determine whether the evidence is capable of supporting the decision. ...

 

Discretion is an important element of our law. But, it can only be exercised judiciously when all the facts are known.

 

...

             

75.      The information available to the trial judge must also allow a determination as to whether the order is necessary in light of reasonable and effective alternatives, whether the order has been limited as much as possible and whether the positive and negative effects of the order are proportionate.

 

...

 

 

78.      Where the record discloses facts that may support the trial judge’s exercise of discretion, it should not lightly be interfered with. The trial judge is in a better position to draw conclusions from the facts he or she sees and hears, and upon which he or she may exercise the judicial discretion. This, however, presupposes that the judge has a sufficient evidentiary or factual basis to support the exercise of discretion and that the evidence is not misconstrued or overlooked.

 

...

 

85.      The importance of a sufficient factual foundation upon which the discretion in s. 486(1) is exercised cannot be overstated, particularly where the reasons given by the trial judge in support of an exclusion order are scant. ...

 

[31]         The “sufficient evidentiary basis” should include more than just conclusory assertions. In Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41 (CanLII), [2005] 2 S.C.R. 188, Justice Fish for the Court said:

 

9   Even then, however, a party seeking to limit public access to legal proceedings must rely on more than a generalized assertion that publicity could compromise investigative efficacy. If such a generalized assertion were sufficient to support a sealing order, the presumption would favour secrecy rather than openness, a plainly unacceptable result.

 

[32]         Similarly, in Globe and Mail, Justice LeBel for the Court (paras 92-94, 99) rejected the “bald assertions, without more”, with “no tangible proof” of the supposed serious risk that was advanced for the requested publication ban.

 

[33]         There have been matrimonial authorities where the courts have approved confidentiality orders. The severity of the confidentiality order varies with the degrees that the evidence established both a serious risk of harm, usually involving children, and that no reasonable alternative measure would alleviate the risk: e.g.: M.S.K. v. T.L.T. (also known as Kolesa v. Thomson), [2003] O.J. No. 352 (C.A.); Himel v. Greenburg, 2010 ONSC 2325 (CanLII), 2010 ONSC 2325; Radtke v. Gibb, 2009 SKQB 440 (CanLII), 2009 SKQB 440; K.V. v. T.E., [1998] B.C.J. No. 1150, paras 7 and 20; S.(C.) v. S.(M.) (2007) R.F.L. (6th) 373 (O.S.C.); and see discussion in M.E.H. v. Williams, 2012 ONCA 35 (CanLII), 2012 ONCA 35 paras 25-29; R.F. v. O.B., 2006 SKQB 496 (CanLII), 2006 SKQB 496, paras 39-41; A.B. v. C.D., 2012 BCSC 267 (CanLII), 2012 BCSC 267, paras 115-17.

 

[34]         Appellate courts have overturned confidentiality orders that were issued without sufficient evidentiary basis: e.g. CTV Television Inc. v. R., 2006 MBCA 132 (CanLII), 2006 MBCA 132 (sub nom. R. v. Hogg) and M.E.H. (O.C.A.).

 

[35]         In CTV, Justice Monnin said:

 

 

30 Looking at the judge’s reasons in the context of Dagenais, Mentuck and Toronto Star, I can only come to the conclusion that he erred. He did not have before him an underlying factual context on which to base his conclusion. With a different factual matrix, he could well have been correct but that is not the reality of this case.

 

...

 

42 In the present case, when the judge speaks of “compelling common sense and logic” and “judicial experience” he can only be referring to judicial notice under another name. His reasoning, therefore, must be subject to the restrictions that the Supreme Court has expressed in Spence [R. v. Spence, 2005 SCC 71 (CanLII), [2005] 3 S.C.R. 458], as well as the evidentiary requirements referred to therein. In this case, there was no evidence that could permit him to link the difficulty courts have had in convincing police services to videotape statements of accused persons with the release of the respondent’s videotaped statement, sufficient to displace the presumption of openness of the courts.

 

I will return to the CTV decision later (para 44) on the topic of judicial notice.

 

[36]         In M.E.H., Justice Doherty said:

 

32 ...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?

 

...

 

34 ...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. 2010 ONCA 726 (CanLII), [2010 ONCA 726], at para. 40; Toronto Star Newspapers Ltd. v. Ontario 2003 CanLII 13331 (ON CA), (2003), 67 O.R. (3d) 577 (C.A.), at para. 19, aff’d 2005 SCC 41 (CanLII), 2005 SCC 41, [2005] 2 S.C.R. 188, at para. 41; see also Ottawa Citizen Group [Ottawa Citizen Group Inc. v. R. 2005 CanLII 18835 (ON CA), (2005), 75 O.R. (3d) 590], at para. 54.

 

...

 

62 The motion judge erred in law in exercising her discretion in favour of granting the non-publication and sealing orders. The material presented by the respondent did not provide the kind of convincing evidence needed to satisfy the first branch of the Dagenais Mentuck test.

 

[37]         At the hearing of this appeal, counsel for Coltsfoot cited Justice Iacobucci’s comments in Sierra Club (that the interest be “real and substantial” and the risk be “well grounded in evidence”) and M.E.H.’s reference to R. v. Canadian Broadcasting Corp. (that the evidence be “convincing” and meet “rigorous standards”). Counsel deduced a suggestion that the burden of proof on the applicant for a confidentiality order exceeds the normal civil standard of balance of probabilities.

 

[38]         I cannot accept this suggestion. In F.H. v. McDougall, 2008 SCC 53 (CanLII), [2008] 3 S.C.R. 41, paras 40-49, Justice Rothstein for the Court pronounced “once and for all in Canada” (para 40) that there is only one formal civil standard of proof - balance of probabilities - which is not shaded variably in different types of case, and in all cases the judge is to scrutinize the evidence with the same degree of care. Accordingly, I do not read Sierra Club and its progeny as altering either the formal standard of proof or the degree of scrutiny expected from a judge in her fact finding. My reading of the authorities, such as Globe and Mail, is that the facts to support a confidentiality order must be established by evidence (that is assessed on the balance of probabilities), not by bald assertions or unsworn generalizations, and those facts in turn must establish a real and substantial risk to an important public interest.

 

Judicial Notice

 

[39]         The judge said (para 33) “If I am required to place my analysis into an evidentiary context ... I do so by taking judicial notice of the facts I have used to support my analysis based on the principles expressed in R. v. Find 2001 SCC 32 (CanLII), [2001] 1 S.C.R. 863 and R. v. Spence 2005 SCC 71 (CanLII), [2005] 3 S.C.R. 458.”

 

[40]         The judge was required to place her analysis into an evidential context. That is clear from the authorities I have just discussed.

 

[41]         The judge’s reasons neither mentioned nor analysed the elements of the test for judicial notice that appear in Find and Spence.

 

[42]         In Find, Chief Justice McLachlin for the Court said:

 

48 In this case, the appellant relies heavily on proof by judicial notice. Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy [citations omitted].

 

After citing comments in the decision under appeal about the behaviour of victims of sexual abuse, the Chief Justice continued:

 

59 This is, however, merely the statement of an assumption, offered without a supporting foundation of evidence or research. Courts must approach sweeping and untested “common sense” assumptions about the behaviour of abuse victims with caution [citations omitted]. Certainly these assumptions are not established beyond reasonable dispute, or documented with indisputable accuracy, so as to permit the Court to take judicial notice of them.

 

[43]         In Spence, Justice Binnie for the Court (para 53) referred to the Chief Justice’s statement of the criteria in Find. He said (para 54) that Find’s approach was based on the writing of Professor E. M. Morgan: “Judicial Notice”, (1943-44), 57 Harvard Law Review 269 (the “Morgan criteria”). Justice Binnie then cautioned that judicial notice of a general social fact should not, by analytical inertia, slipstream into judicial notice of a particular adjudicative application of that fact which disposes of the case at hand. Any particular application of the dispositive adjudicative fact, by judicial notice, should itself satisfy the criteria of notoriety or indisputability.  Justice Binnie observed:

 

56 It could be argued that the requirements of judicial notice accepted in Find should be relaxed in relation to such matters as laying a factual basis for the exercise of a discretion to permit challenges for cause. These are matters difficult to prove, and they do not strictly relate to the adjudication of guilt or innocence, but rather to the framework within which that adjudication is to take place. Such non-adjudicative facts are now generally called “social facts” when they relate to the fact-finding process and “legislative facts” in relation to legislation or judicial policy. ...

 

57 “Social fact” evidence has been defined as social science research that is used to construct a frame of reference or background context for deciding factual issues crucial to the resolution of a particular case [citation omitted]. As with their better known “legislative fact” cousins, “social facts” are general. They are not specific to the circumstances of a particular case, but if properly linked to the adjudicative facts, they help to explain aspects of the evidence. Examples are the Court’s acceptance of the “battered wife syndrome” to explain the wife’s conduct in R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852 (S.C.C.), or the effect of the “feminization of poverty” judicially noticed in Moge v. Moge, 1992 CanLII 25 (SCC), [1992] 3 S.C.R. 813 (S.C.C.), at p. 853.  ...

 

58 No doubt there is a useful distinction between adjudicative facts (the where, when and why of what the accused is alleged to have done) and “social facts” and “legislative facts” which have relevance to the reasoning process and may involve broad considerations of policy [citation omitted].  However, simply categorizing an issue as “social fact” or ‘legislative fact” does not license the court to put aside the need to examine the trustworthiness of the “facts” sought to be judicially noticed. Nor are counsel encouraged to bootleg “evidence in the guise of authorities” [citation omitted].

 

...

 

61 To put it another way, the closer the fact approaches the dispositive issue, the more the court ought to insist on compliance with the stricter Morgan criteria.

 

...

 

63 It is when dealing with social facts and legislative facts that the Morgan criteria, while relevant, are not necessarily conclusive. There are levels of notoriety and indisputability. Some legislative “facts” are necessarily laced with supposition, prediction, presumption, perception and wishful thinking. Outside the realm of adjudicative fact, the limits of judicial notice are inevitably somewhat elastic. Still, the Morgan criteria will have great weight when the legislative fact or social fact approaches the dispositive issue.  For example, in R. v. Advance Cutting & Coring Ltd., 2001 SCC 70 (CanLII), [2001] 3 S.C.R. 209, 2001 SCC 70 (S.C.C.), LeBel J. observed:

 

The fact that unions intervene in political social debate is well known and well documented and might be the object of judicial notice.  ...

 

Taking judicial notice of the fact that Quebec unions have a constant ideology, act in constant support of a particular cause or policy, and seek to impose that ideology on their members seems far more controversial. It would require a leap of faith and logic, absent a proper factual record on the question. [paras. 226-27]

 

 

See also Gladue [R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688], at para 83.

 

...

 

65 When asked to take judicial notice of matters falling between the high end already discussed where the Morgan criteria will be insisted upon, and the low end of background facts where the court will likely proceed (consciously or unconsciously) on the basis that the matter is beyond serious controversy, I believe a court ought to ask itself whether such “fact” would be accepted by reasonable people who have taken the trouble to inform themselves on the topic as not being the subject of reasonable dispute for the particular purpose for which it is to be used, keeping in mind that the need for reliability and trustworthiness increases directly with the centrality of the “fact” to the disposition of the controversy. ... [Justice Binnie’s italics]

 

...

 

67 ...The facts of which they [the respondent and intervenor] ask us to take judicial notice would be dispositive of the appeal; yet they are neither notorious nor easily verified by reference to works of “indisputable accuracy”. We are urged to pile inference onto inference.  To take judicial notice of such matters for this purpose would, in my opinion be to take even a generous view of judicial notice a leap too far. ... [Justice Binnie’s italics]

 

[44]         In CTV, supra, the Manitoba Court of Appeal applied Justice Binnie’s observations to the issuance of a confidentiality order. Justice Monnin said:

 

33 With respect, I am of the view that in the circumstances of this case, the judge erred when he based his conclusion on common sense and logic alone, without the benefit of real and substantial evidence.

 

...

 

37 To a certain degree, the judge could be said to have taken judicial notice of facts he found central to the resolution of the controversy, and in doing so, he erred. This is even more so since the decision of the Supreme Court of Canada in R. v. Spence, 2005 SCC 71 (CanLII), 2005 SCC 71, [2005] 3 S.C.R. 458 (S.C.C.), a case dealing with the racial makeup of juries.

 

...

 

 

42 In the present case, when the judge speaks of “compelling common sense and logic” and “judicial experience” he can only be referring to judicial notice under another name. His reasoning, therefore, must be subject to the restrictions that the Supreme Court has expressed in Spence [R. v. Spence, 2005 SCC 71 (CanLII), [2005] 3 S.C.R. 458], as well as the evidentiary requirements referred to therein. In this case, there was no evidence that could permit him to link the difficulty courts have had in convincing police services to videotape statements of accused persons with the release of the respondent’s videotaped statement, sufficient to displace the presumption of openness of the courts.

 

43 The simple fact of this appeal and the Crown’s argument in support of the appellant’s position demonstrate that reasonable people are debating the accuracy of what the judge concluded as being fact. As such, that fact cannot be taken judicial notice of, based on the first prong of the Morgan criteria.

 

44 Furthermore, if readily accessible sources were available, they were not advanced before the judge. Satisfaction of this criterion would have required the judge to take judicial notice of the existence of such sources, and then make a further inference that these sources confirmed that releasing the videotape would create reluctance to consenting to future videotaping. Simply piling inference upon inference does not satisfy the second prong of the Morgan criteria.

 

45 When the judge took judicial notice of the fact that the releasing of the videotape would hinder the producing of videotaped statements before the courts, that conclusion became determinative of the application.  Being so central to the issue at hand, the dicta of Spence should have been applied and the Morgan criteria should have been adhered to strictly.  Neither prong of the Morgan criteria being satisfied, the social fact that releasing the respondent’s videotaped statement would deter the producing of videotaped statements before the courts should not have been a fact accepted without proof.

 

[45]         Turning to this appeal, in my respectful view, the judge’s use of judicial notice offended these principles.

 

[46]         I accept that judicial notice may be taken of the social fact that “identity theft is real”, in the judge’s words.

 

 

[47]         I also accept that access to (1) unique personal identifier numbers, namely passport or Social Insurance Numbers, Health Insurance Card or driver’s licence numbers, (2) credit or debit card numbers, (3) unique property identifier numbers, namely numbers for bank accounts or other investment assets or for debt instruments or insurance policies, and serial or registration numbers for vehicles, may assist the use of identity theft to fraudulently access property.

 

[48]         I also accept that (4) dates of birth, (5) names of parents, (6) personal addresses, (7) email addresses and (8) telephone numbers sometimes may not already be in the public domain, and therefore access to that information in a court file possibly could assist with identity theft.  I add that this record has no evidence one way or the other whether that information, for Mr. Jacques or Ms. Foster-Jacques, already is in the public domain.

 

[49]         I disagree that access to the respondents’ names in the Family Division’s court file will add to any risk of identity theft, as the judge feared in her reasons. The respondents’ names are already in the public domain for this litigation.  They appear in the style of cause of the judge’s decision under appeal, which is accessible on the Courts of Nova Scotia website.

 

[50]         If children are involved, the information to be filed under Rule 59 may include a Parenting Statement, with the child’s details that may include addresses of schools or daycare facilities.  That information is not pertinent here, as there are no children of the respondents’ marriage.

 

[51]         The items I have noted in paragraphs 46-48, in my view, can be judicially noticed as social facts that sufficiently satisfy the test in Find as that test may be relaxed for social facts according to the comments in Spence.  It is not uncommon that access to a court file be on condition that either redacts or bans the publication of items that I have mentioned in paras 47-48: e.g. R. v. Globe & Mail, a division of CTV Globemedia Publishing Inc., [2011] A.J. No. 682; M.E.H., supra.

 

[52]         The above, in my view, is the generous outer limit of judicial notice in this case. If Mr. Jacques or Ms. Foster-Jacques wished to urge that the risk of identity theft extends beyond the items I have listed in paras 47-48, then they should have discharged their burden of proof by adducing evidence to that effect.  They chose not to do so.

 

 

[53]         Under Sierra Club’s test, neither the media nor the public would be deleteriously affected, to any material degree, by not having access to the information I have listed in paras 47-48.  On the other hand, a precedent that extends beyond those items, to seal the entire court file as a matter of course in divorce proceedings before the Family Division, would inflict a stinging wallop on the rationale that underlies the open court principle.  I will discuss that matter later under the Second Issue.

 

[54]         The key issue in this case is whether, under Sierra Club’s test, there is a reasonable alternative, less restrictive than sealing the entire court file, that would guard against the risk of identity theft from information in the items I have listed in paras 47-48.

 

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