31 October 2006

The following is a ruling issued by Justice Normand Glaude re publication bans – confidentiality and privacy

……………………………………………………………

THE CORNWALL PUBLIC INQUIRY

L’ENQUÊTE PUBLIQUE SUR CORNWALL

DIRECTIONS ON PROCESS – REQUESTS FOR CONFIDENTIALITY OF VICTIMS’ OR ALLEGED VICTIMS’ IDENTITIES

Background

A number of issues arose in the first weeks of evidence before the Inquiry in relation to privacy, confidentiality and publicity of the Commission’s proceedings.

In particular, questions were raised prior to the testimony of Ms. Lise Brisson at the Inquiry on October 5, 2006. In preliminary remarks, Commission counsel indicated that reference would be made to a transcript of the preliminary hearing of September 15, 1986 in R. v. Deslauriers.

In that case, the Honourable Justice Robert Paris of the Ontario Court of Justice had issued a publication ban on the name of all victims and identifiers under former section 442(3) of the Criminal Code, which became section 486 and then section 486.4 of the Criminal Code. I understand that this publication ban is still ongoing.

Commission counsel sought the issuance of a publication ban mirroring the one issued by Mr. Justice Paris. I agreed to this request and issued a publication ban on the name of victims or any identifiers that would tend to identify the victims listed in the Order of Mr. Justice Paris.

A question then arose as to whether the transcript in question should be marked as a “P” or a “C” exhibit. Rule 26 of the Commission’s Rules of Practice and Procedure provides that:

“26. All evidence shall be categorized and marked P for public sittings and, if necessary, C for sittings in camera and/or under a publication ban.”

2

Under the Rules, “C” or confidential exhibits are not made available  to  the public. Rule 30 reads as follows:

“30. Only those persons authorized by the Commission, in writing, shall have access to C transcripts and exhibits.”

Commission counsel proposed that the exhibit be marked as “P”, with an indication on the exhibit itself that a publication ban attached to it. Counsel for the Ministry of Community Safety and Correctional Services objected and requested, out of an abundance of caution, that the exhibit be marked as “C”.

Counsel for the Ministry pointed out that one of the individuals mentioned in the transcript in question as an alleged victim had specifically indicated to him or his colleagues representing the Ministry that he did not want his or her name to be made public. Counsel for the Ministry expressed concerns that a publication banon the name would not be sufficient and that the public could seek access to exhibits and obtain the name of the person.

I heard brief submissions from counsel for the Parties, who stressed the importance of the issue and the need for full submissions to be made.

I then agreed that the document be marked as a “C” exhibit in its entirety on an interim basis and that a date be set for full submissions on the matter.

Prior to the testimony of Ms. Brisson, there were also discussions concerning another document originating from the Diocese of Alexandria-Cornwall, the Ad Hoc Committee Report and Recommendations dated May 23, 1986 – Re: Father Gilles Deslauriers. No previous publication ban applied to this document. This document also contains names of victims and alleged victims of Gilles Deslauriers. I had this document filed on an interim basis as a “C” exhibit for the same reasons.

At some point during the course of the cross-examinations of Ms. Lise Brisson and Mr. Benoît Brisson on October 11, 2006, counsel for the Victims Group and the Diocese of Alexandria-Cornwall wished to

3

make specific references to another particular victim of Gilles Deslauriers named in the two documents mentioned above. I heard submissions in camera to determine how the person should be referred to publicly. I determined that the witness should be identified publicly as C-1 in the course of the cross-examination.

The issue of protection of the names of victims and alleged victims was subsequently raised on a number of other occasions. Out of an abundance of caution, I accepted that the exhibits identifying victims or alleged victims be marked as “C” on an interim basis, unless the person consented to the public disclosure of the information.

Submissions

I heard detailed submissions from counsel on October 12 and 16, 2006. In particular, I heard from counsel for the Citizens for Community Renewal, the Victims Group, the Ministry of Community Safety and Correctional Services, the Children’s Aid Society, the Ministry of the Attorney General, Mr. Jacques Leduc, the Cornwall Community Police Service and Board, the Ontario Provincial Police and the Ontario Provincial Police Association. I also heard from Ms.Terri Saunders on behalf of the Standard Freeholder and from Mr. Tony Wong for Radio-Canada and the Canadian Broadcasting Corporation.

Issues

In their submissions, counsel for the Parties addressed broader issues relating to confidentiality and the publicity of Inquiry proceedings. I do not believe it is necessary or advisable to rule or to pronounce myself in advance on any potential question that may arise out of this Inquiry.

4

In the present Directions, I am only establishing guiding principles for dealing with situations such as the ones described above. Therefore, my comments would be applicable to the following scenarios:

1. Requests for confidentiality made on behalf of victims or alleged victims who have specifically communicated that they did not want their identities to be made public;

2. Requests for confidentiality on behalf of victims or alleged victims who have not communicated, whatever the reason, that they did not want their identities to be made public.

Law and Guiding Principles 

General Legal Principles

In my Ruling on the Motion for an Order to Remove Exhibits from the Cornwall Public Inquiry website of June 6, 2006, I quoted the Supreme Court in the case Vancouver Sun (Re), [2004] 2 S.C.R. 332, where Iaccobucci and Arbour JJ. stated that the “open court principle” was a hallmark of a democratic society and applied to all judicial proceedings.

In Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97, Cory J. found that the “open court principle” applied to the proceedings of commissions of inquiry. He wrote at paragraph 117 that: 

“117. Open hearings function as a means of restoring the public confidence in the affected industry and in the regulations pertaining to it and their enforcement. As well, it can serve as a type of healing therapy for a community shocked and angered by a tragedy. It can channel the natural desire to assign blame and exact retribution into a constructive exercise providing recommendations for reform and improvement. […]”

Openness is particularly important in the context of this Inquiry, which is expected to dispel rumours and innuendoes and ascertain allegations of cover-up and conspiracy theories. Therefore, I believe

5

there should be as few restrictions as possible to the publicity of the proceedings.

The “open court principle” obviously applies to viva voce evidence. Whenever possible, members of the public should be able to attend the hearings of the Inquiry and follow the proceedings on the Commission webcast and on Cogeco, which broadcasts the proceedings. The principle also means that the public must be allowed to consult the exhibits filed before the Inquiry. Members of the public should also be able to obtain information about the proceedings of the Inquiry through the media.

However, there will be situations where important interests require special protection. Section 4 of the Public Inquiries Act specifically lists some of those interests:

“(b) intimate or personal matters or other matters […] of such nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interest of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings are open to the public.” Section 6 of the Order in Council also speaks about “privacy interests”.

Pursuant to sections 3 and 4 of the Public Inquiries Act and section 6o f the Order in Council, I have a discretionary power to limit the publicity of the proceedings. This power is subject to the Dagenais/Mentuck test, which I feel necessary to outline again as follows: 

A publication ban or other discretionary order that limits freedom of expression and freedom of the press in relation to legal proceedings should be ordered only when:

a) such an order is necessary to prevent a serious risk to the proper administration of justice, or to an important interest, because reasonably alternative measures will not prevent the risk;

6 

b) the salutary effects of the order 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.

The Dagenais/Mentuck test applies to all discretionary orders that limit the freedom of expression and freedom of the press in relation to legal proceedings, and proceedings of commissions of inquiry. For example, in the context of the proceedings of this Inquiry, the Dagenais/Mentuck test would apply to any confidentiality request, such as a request for an in camera hearing, for the issuance of a publication ban, a request for an identity to be protected by way of non-identifying initials, and a request to limit public access to Inquiry exhibits or to edit portions of exhibits for public access.

Specific Issues at Stake 

Burden

It is well established that the burden of displacing the general rule of openness lies on the person making the application. It follows that I will not issue blanket confidentiality orders and shall deal with each request on an individual basis. 

In Camera Hearings

Whenever possible, attempts should be made to deal with confidentiality requests in open court. I agree with counsel for Radio-Canada and CBC that counsel should try to identify victims or alleged victims by reference to a document or page number without naming the person when making a request for confidentiality. If not possible, however, requests for confidentiality may be heard in camera. Pursuant to Rule 39 of the Commission’s Rules of Practice and Procedure, media representatives may remain present in the course of in camera hearings. They may have unfettered access to all

7

information available at such hearings, including names of victims and alleged victims, unless I decide otherwise.

Evidentiary Issues

Applying the first branch of the Dagenais/Mentuck test, which is the serious – or real and substantial risk – to an important interest to be protected, the Supreme Court stated in R. v. Mentuck, [2001] 3 S.C.R. 442, that the judge must have a convincing evidentiary basis for issuing the confidentiality order.

However, with respect to the scenarios we are dealing with, it will not always be possible to have “traditional evidence” in support of an application for confidentiality. This does not mean that the privacy or other interests of victims or alleged victims should not be protected, particularly when their identity was never made public. I believe it would be unfair and unacceptable to protect only those who would be in a position to provide viva voce or affidavit evidence because they have been able to communicate with counsel.

It is not difficult to imagine that a victim of child sexual abuse who has never revealed the matter to his or her family, friends and work colleagues, could suffer dire consequences if the matter was revealed to the world. I have heard evidence from victims who have outlined the devastating experience of disclosing child sexual abuse after years of silence.

I believe that there are flexible, innovative and sensitive ways to approach this matter. In comparison, under section 486.4 of the Criminal Code, in proceedings dealing with sexual offences, a criminal court judge may issue a publication ban on information that could identify the complainant or a witness.

If the complainant, the Crown or a witness under the age of 18 makes the request, the judge shall issue the order. Such orders are routinely made in criminal proceedings involving sexual offences. On such application made by a complainant or the Crown, no evidentiary support is required. In other cases, when evidentiary support would be required under section 486.4 of the Criminal Code, evidence may be provided viva voce, by affidavit or through submissions of counsel;

8

see on this issue Southam Inc. v. Ontario, (1989) 47 C.C.C. (3d) 23 (Ontario Court of Appeal).

“Traditional evidence” would be preferable in support of confidentiality requests for victims or alleged victims. However, if not possible, I will accept submissions made by counsel on the first branch of the Dagenais/Mentuck test. 

Names not to be referred to before the Inquiry

If a name is not to be referred to in the course of the hearings, counsel who is seeking confidentiality could ask for the issuance of a publication ban, such as under section 486.4 of the Criminal Code. 

Names to be referred to before the Inquiry

If a name is to be referred to before the Inquiry, the issuance of a publication ban as we know it raises questions as to whether the Inquiry webcast, the broadcast by Cogeco, and the posting of transcripts of the proceedings on the Commission website constitute publication and broadcasting.

If not, the airing or posting of the names of victims or alleged victims could defeat the purposes of confidentiality. On the other hand, shutting down the webcast for the portion of the evidence where the name of the person may be mentioned and marking transcripts as confidential may not minimally impair the freedom of expression and freedom of the press.

I do not believe it is necessary to rule on this matter today since there is an alternative solution. I believe that the method for allowing the most openness to the proceedings of the Inquiry, while at the same time protecting important and legitimate interests of victims and alleged victims, would be to use monikers or non-identifying initials. If such an order is issued, the person would not be identified publicly and in the public records and transcripts except by the moniker or non-identifying initials. The media would also be required to avoid references that might reveal the identity of the person.

9

I see no reason to limit the application of Rules 40 to 45 of the Rules of Practice and Procedure of the Commission to the sole situation of a witness seeking confidentiality. In my view, section 3 of the Public Inquiries Act and section 6 of the Order in Council are broad enough to authorize similar orders applicable to persons other than witnesses. 

Access to Exhibits

Then, there is the issue of whether, in addition to publication bans or orders for the use of monikers or non-identifying initials, orders should be made to prohibit or limit the public from seeking access to exhibits where the names of victims or alleged victims appear.

Again, I will not make blanket orders of such nature and each request shall be dealt with applying the Dagenais/Mentuck test. If a publication ban or an order for the use of monikers or nonidentifying initials is issued, the media will be bound to uphold my order, and any prejudice to the person concerned should be limited.

However, there may be situations where legitimate concerns may justify limiting public access to information over and above a publication ban. For example, some of the exhibits or portions thereof may need to be protected from public view.

I emphasize that such concerns should not be expressed in a vacuum but should be supported by evidence or by submissions of counsel.

As a general rule, I do not believe that an exhibit should be marked as “C” in its entirety if only a portion of such exhibit needs to be protected. If I accede to a request to protect the name of a victim or alleged victim, I believe the proper method would be to mark the exhibit as “P”, but to edit the name of the person for the purpose of public consultation. However, the name would still appear in the official exhibit of the Inquiry.

10 

Conclusion

I have issued directions and guiding principles which, I believe, would achieve a balance between the protection of the interests of victims and alleged victims, while at the same time allowing wide public and media access to the proceedings and exhibits.

As indicated, I will deal with specific confidentiality requests on a case-by-case basis, applying the criteria set out in the jurisprudence.

I wish to thank counsel for all Parties, Ms. Saunders for the Standard Freeholder, and Mr. Wong, counsel for Radio-Canada and CBC, who have made submissions on this issue, for their thoughtful assistance.

Dated this 31st day of October, 2006

G. Normand Glaude

Commissioner

709 Cotton Mill Street, Cornwall, Ontario K6H 7K7 • Tel.: (613) 938-2461 •Fax: (613) 938-7463

709, rue de la Fabrique, Cornwall (Ontario) K6H 7K7 • Téléphone: (613) 938-2461 • Télécopieur: (613) 938-7463