Date: 20110630
Docket: T-1008-10
Citation:
2011 FC 810
Ottawa, Ontario, June 30, 2011
PRESENT: THE CHIEF JUSTICE
BETWEEN:
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ABORIGINAL PEOPLES TELEVISION NETWORK
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Applicant
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and
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CANADIAN HUMAN RIGHTS COMMISSION,
ATTORNEY GENERAL OF CANADA (REPRESENTING THE MINISTER OF THE DEPARTMENT OF
INDIAN AFFAIRS AND NORTHERN DEVELOPMENT CANADA), FIRST NATIONS CHILD AND
FAMILY CARING SOCIETY OF CANADA, ASSEMBLY OF FIRST NATIONS, CHIEFS OF ONTARIO
AND AMNESTY INTERNATIONAL
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Respondents
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant, Aboriginal Peoples Television Network
(APTN), seeks judicial review of the refusal by the Canadian Human Rights
Tribunal (the tribunal) to allow APTN television camera access to its proceedings.
Background
[2]
The Assembly of First Nations and the First Nations Child
and Family Caring Society (the Caring Society) filed a human rights complaint
alleging that the inequitable funding of child welfare services on First
Nations reserves amounted to discrimination on the basis of race and national
ethnic origin, contrary to section 5 of the Canadian Human Rights Act, RSC
1985, c H-6 (the complaint).
[3]
The uniqueness and importance of this case are highlighted in
the affidavit of a member of the Opaskwayak Cree Nation, who is a single mother
residing some 600 kilometres north of Winnipeg. In describing the plight of aboriginal children under welfare
protection, she states:
From the
day I entered child protection, the inadequate funding of the services provided
to me affected every aspect of my life. The injustices I experienced while
under welfare protection continue to affect me in a way that is impossible for
me to convey. I believe that viewing the proceedings will help validate the
feelings of injustice I have experienced all of my life. It is important for me
to know that these injustices are not being ignored as they have been in the
past. It is also important for me to know that my story and those of other
First Nations children is being heard. I am hopeful that if our stories are
heard, things will change for First Nations children. I believe there can be a
brighter future for them. [emphasis added]
[4]
According to the tribunal’s rules of procedure, the hearing
of this complaint will be open to the public. Members of the media will be
allowed to attend, take notes and report on the hearing. According to the
tribunal’s decision, tape recorders and video cameras are not allowed in the
hearing room.
[5]
APTN is the only television network in Canada that focuses specifically on aboriginal issues. APTN
requested permission from the tribunal to film the complaint proceedings,
including opening and closing statements, testimony of witnesses, questions,
objections, and arguments.
[6]
The tribunal denied the APTN request for camera access.
The decision under review
[7]
In its reasons, the tribunal touches on the aboriginal
community’s interest in being able to observe the proceedings, the significant
barriers which would make it difficult or impossible for most members of this
widely dispersed community to travel to Ottawa for the hearing and the impact the outcome of the proceedings will have, on
aboriginal peoples in particular.
[8]
The tribunal also considered the factors identified against
granting camera access and broadcasting. Specifically, the tribunal noted the
possibility that the media will broadcast selective excerpts which offer an
incomplete portrayal of a witness’ testimony. This would risk undermining the
integrity of the tribunal process. Also, in the tribunal’s view, broadcasting
proceedings would undermine the efficacy of witness exclusion orders, and would
compromise the privacy interests of participants in the hearing. Finally, again
in the opinion of the tribunal, cameras might introduce an element of
distraction detrimental to the fairness of the hearing.
[9]
Immediately following this cursory analysis, the tribunal
concludes as follows (at paragraph 37 of her decision):
It is my
firm opinion, after due consideration of the submissions of the parties,
that nothing less than the exclusion of cameras from the hearing room
will suffice to ensure that the publicity generated by these proceedings does
not undermine its integrity. (Emphasis added.)
Is the decision reasonable?
[10]
I have concluded that the tribunal’s decision was made
without regard to the material before it. In particular, the member does not
mention, let alone deal with the applicant’s detailed Request and Submission of
October 22, 2009, to obtain television footage of the proceedings. This Request
and Submission (the APTN proposal) is attached to these reasons as Annex “A”. Accordingly,
the outcome reached by the tribunal is unreasonable when measured against the
available record.
[11]
Under the heading Guidelines for Coverage, the APTN
proposal suggested some 15 operating guidelines concerning the television
coverage. The guidelines covered issues from the positioning of the television
equipment to suitable attire for the APTN filming crew. The APTN proposal also
set out the purpose of the television coverage, and stated that APTN “commits
to work with the tribunal to establish guidelines that respect the dignity and
integrity of the tribunal’s proceedings”. The APTN proposal was necessarily
subject to the approval of the tribunal.
[12]
It was open to the tribunal, through its counsel, to engage
in a discussion with the APTN concerning its proposal. There is no evidence
before this Court that this was done.
[13]
The tribunal’s decision does not refer to this proposal, or
provide any reasons why these guidelines were inadequate to manage any of the
potential negative impacts of filming. The tribunal failed to provide reasons
why a total ban on broadcasting was necessary.
[14]
There was little affidavit evidence before the tribunal
regarding any of the potential negative impacts of filming the proceedings. The
Attorney General provided one affidavit from a Litigation Case Manager with the
Department of Indian Affairs and Northern Development. Her affidavit stated
that the government’s witnesses had all “expressed concern” about their
testimony being videoed and televised. Their primary concern was that if their
testimony was taken out of context, it would portray them in a negative light
and damage their working relationships with First Nations persons and agencies.
None of the proposed witnesses expressed concern that their testimony would be
affected by the presence of a camera, or otherwise expressed any concerns
relating to the fairness of the hearing. None of the potential witnesses were
named, and no evidence was provided directly from them regarding their
concerns.
[15]
The tribunal’s three primary concerns with camera access –
risk of selective editing, impact on possible exclusion orders, and impacts on
witnesses – have been considered in the case law. These concerns are discussed
in detail in R v Pilarinos, 2001 BCSC 1332, R v Fleet (1994), 137
NSR (2d) 156 (SC), and Andreen v Dairy Producers Co-operative Ltd. (No. 2)
(1994), 22 CHRR D/80. Pilarinos concerned an application for expanded
media coverage of the trial of a former Premier of British Columbia who was
charged with fraud on the government and breach of trust by a public officer.
Fleet concerned an application to broadcast the trial of an accused charged
with murder, where camera access was denied. Andreen is a decision of
the Saskatchewan Human Rights Commission allowing camera access to an inquiry
into complaints of sexual harassment, on certain conditions.
[16]
The tribunal failed to consider whether the concerns over
camera access raised in these cases are applicable to the facts in this case. For
example, there was no evidence that exclusion orders had been issued or were
contemplated, or that this issue could not be dealt with if and when it arose.
[17]
Similarly, there was no evidence before the tribunal that
the privacy interests at stake in the case at bar were similar to the privacy
interests at stake in Pilarinos, Fleet, and Andreen. In Andreen,
the privacy concern was that “there is a distinction between disclosing potentially
intimate details of one’s life in a hearing room where the public attend,
on the one hand, and having those disclosures broadcast throughout the
province, and perhaps throughout the country, over a television network, on the
other hand” (para. 14) [emphasis added].
[18]
The evidence before the tribunal was that the human rights
complaint would not require personal information about a complainant or
respondent to be disclosed. None of the proposed witnesses were survivors of
the child welfare system. No personal respondents were named in the complaint.
The government witnesses would be testifying about policies and decisions made
regarding the provision of child welfare services. Information about these
policies and decisions is already publicly available through several reports,
including a National Policy Review (2000) prepared by the Assembly of First
Nations and First Nations child and family service agency representatives in
partnership with the Department of Indian Affairs and Northern Development, a
2008 Report from the Auditor General of Canada, a 2009 Report of the Standing
Committee on Public Accounts, and the 2008 Canadian Incidence Study on Reported
Child Abuse Neglect. The evidence before the tribunal was that the testimony
and submissions would focus on widely known public policies.
[19]
The interests of people living on reserve in observing the
proceedings at issue are more direct than those of the general public in
observing a criminal trial. The proceedings will decide whether large numbers
of geographically dispersed people have experienced discrimination. The
proceedings directly implicate the human rights of APTN’s intended audience.
[20]
By failing to consider the unique facts of this case, the
tribunal’s decision was made without regard to the material before it. The
decision falls short of the standard of justification, transparency and intelligibility
required by Dunsmuir v New Brunswick, 2008 SCC 9.
Mootness
[21]
On March 14, 2011, after the Court had taken this
proceeding under reserve, the tribunal granted the motion brought by the
Attorney General of Canada that the issues raised in the complaint of the First
Nations Child and Family Caring Society of Canada (and the Assembly of First
Nations) were beyond the tribunal’s jurisdiction (the jurisdictional motion).
The tribunal’s decision is reported at 2011 CRHT 4.
[22]
The tribunal’s dismissal of the complaint raised the issue
of the mootness of this application for judicial review concerning camera
access to the tribunal’s proceeding. An understanding of the timelines in the
proceedings both before the tribunal and this Court is useful to situate the
mootness issue.
[23]
On June 2 and 3, 2010, the jurisdictional motion was argued
before the tribunal. Written submissions were subsequently filed.
[24]
On June 25, 2010, APTN initiated this application for
judicial review challenging the tribunal’s refusal to allow camera access to
its hearings. On November 4, 2010, after its application for judicial review
had been perfected, APTN filed a requisition for hearing.
[25]
Prior to scheduling the hearing, the Court used case
management to obtain from the parties more information on the status of the
jurisdictional motion before the tribunal. The goal was to avoid, if possible,
the duplication of judicial resources. The Court was advised that the tribunal
decision concerning the jurisdictional motion continued to be under reserve.
[26]
On February 1, 2011, the hearing of the APTN application
for judicial review was scheduled for March 7, 2011. In fact, the hearing
lasted two days.
[27]
As noted earlier, on March 14, 2011, the tribunal granted
the relief sought in the jurisdictional motion and dismissed the complaint for
lack of jurisdiction.
[28]
The Attorney General of Canada contested the APTN
application for camera access to the tribunal proceedings both before the
tribunal and in this Court.
[29]
After consideration of the parties’ submissions concerning
mootness and, in particular, the principles of Borowski v Canada (Attorney
General),
[1989] 1 S.C.R. 342, I have concluded in the exercise of my
discretion that this application for judicial review should be determined now. In
my view, there remains a live controversy between the parties, at least until
the application for judicial review of the tribunal decision concerning the
jurisdictional motion has been finally resolved.
[30]
APTN, supported by the Caring Society and the Commission,
argued that the tribunal erred by concluding that denying camera access to the
proceedings did not constitute an unjustifiable breach of section 2(b) of the Canadian
Charter of Rights and Freedoms. I find it unnecessary to decide the Charter
issue at this time: Tremblay v Daigle, [1989] 2 S.C.R. 530 at para. 77.
[31]
Accordingly, the APTN application for judicial review of
the tribunal’s ruling not to allow camera access to its hearing concerning the
complaint will be granted. Because the tribunal has ruled that it has no
jurisdiction to consider the underlying complaint, the matter of
re-determination of its decision not to grant camera access should be deferred
until the judicial determination concerning the jurisdictional issue has been
definitively resolved.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
This
application for judicial review is granted;
2.
The
decision of the Canadian Human Rights Tribunal, dated May 28, 2010, is set
aside. Re-determination of the matter by a different member is deferred until
the judicial determination concerning the jurisdictional issue has been
definitely resolved.
“Allan Lutfy”
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