Date:
20160815
Docket: T-2084-14
Citation:
2016 FC 933
Ottawa, Ontario, August 15, 2016
PRESENT: The
Honourable Madam Justice Roussel
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BETWEEN:
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THE CANADIAN
BROADCASTING CORPORATION / RADIO-CANADA
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Applicant
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and
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CANADA
(ATTORNEY GENERAL)
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
This application for judicial review is about
competing interests: the open court principle, which is deeply rooted in our
legal system and the protection of the privacy of sexual assault complainants in
court martial cases. Like any other court, courts martial are public. In cases
involving the prosecution of sexual offences, publication bans can be ordered
to protect the identity and privacy of a complainant. However, members of the
public, including the media, can still be present in the courtroom. At issue in
this application is whether a publication ban prohibits access to a
complainant’s identity, as contained in court records, once the court martial proceedings
are over.
II.
Background
A.
Request for court martial decisions
[2]
Rachel Houlihan, a journalist employed with the Canadian
Broadcasting Corporation [CBC] Fifth Estate program, has been investigating the
prosecution of sexual assault by the Canadian military justice system. On June
12, 2013, she sent an email to Captain Amber Bineau, a Public Affairs Officer with
the Department of National Defence, asking for all the documents related to a
particular sexual assault court martial which proceeded in 2008. In a response
communicated the same day, Captain Bineau informed Ms. Houlihan that she had
put in the request for the transcript and decision, but due to a publication
ban, the Office of the Chief Military Judge would need to sever the documents before
releasing them. A week later, Captain Bineau sent Ms. Houlihan a redacted copy
of the requested decision but informed Ms. Houlihan that the remaining part of
her request would take some time.
[3]
On June 21, 2013, Ms. Houlihan sent another email
to Captain Bineau inquiring as to why the decision had not been posted online.
[4]
On August 2, 2013, Captain Bineau advised Ms.
Houlihan that:
Court decisions are posted on the Chief
Military Judges (sic) website once the presiding military judge has reviewed
the transcribed decision and has approved it for publication. Those decisions
under publication ban require extensive review and consultation to ensure the
documents are severed in accordance with the Courts (sic) orders, and are
compliant with federal legislation, including the Privacy Act and Criminal
Records Act. This review may involve removing any information that could
potentially identify a complainant or witness. Prior to 2010, court documents
under a publication ban were provided upon request. Since 2010, the military
judiciary writes its respective decisions in a format allowing court decisions
to be published on the Chief Military Judges (sic) website, including those
decisions whereby the Court has ordered a publication ban.
[5]
On December 10, 2013, Captain Bineau wrote to Ms.
Houlihan asking whether she still required the transcript in relation to the
2008 court martial decision. Ms. Houlihan responded that she did not think she
would need the full transcript but would confirm later. She also requested
decisions in fourteen (14) other cases from 2004 involving allegations of
sexual assault or similar allegations.
[6]
On March 26, 2014, Captain Bineau sent the fourteen
(14) decisions to Ms. Houlihan. Six (6) of the decisions included redactions or
word substitutions. With the exception of one decision, all of them included a
warning that the identity of the complainant and any information that would
disclose their identity could not be published in any document or broadcast in
any way. The majority of the warnings indicated that the publication bans were
imposed pursuant to subsections 486(3) and 486(4) of the Criminal Code, RCS
1985, c C-46, as they read in 2004.
B.
Application to the Courts Martial
[7]
In an unrelated court martial involving a charge
of sexual assault subject to a publication ban, the CBC filed a Notice of Application
on April 24, 2014, with the Office of the Chief Military Judge seeking an unredacted
copy of the decision and transcript or audio recording in that case, including a
copy of any publication ban issued by the court martial. The CBC also sought a
declaration that the audio recordings, transcripts and other records of courts martial
are presumptively public and are not subject to the provisions of the Privacy
Act, RSC 1985, c P-21.
[8]
On August 28, 2014, Military Judge d’Auteuil dismissed
the CBC’s application on the grounds that he did not have jurisdiction to hear
the application.
[9]
On October 9, 2014, the CBC filed its Notice of Application
in this Court.
[10]
Throughout the proceedings, the CBC has stated
that it does not wish to publish the information that is subject to a
publication ban and it has undertaken not to do so. The CBC has indicated that
it is seeking the names of the complainants for the purpose of having a
reporter contact them and invite them to tell their stories.
III.
Legislative Framework
[11]
The Canadian military justice system consists of
a two-tiered tribunal structure: summary trials, which are designed to deal
with minor service offences, and courts martial, which deal with more serious offences
and are tried either by a military judge alone or a military judge and a panel
of senior members of the Canadian Forces. There is no permanent court martial.
Instead, courts martial are constituted on an ad hoc basis and convened
only when necessary to address specific charges under the Code of Service
Discipline (Canada (Military Prosecutions) v Canada (Chief Military Judge),
2007 FCA 390 at para 5 [CMP v CMJ]).
[12]
Pursuant to subsection 179(1) of the National
Defence Act, RSC 1985, c N-5 [NDA], a court martial has the same powers,
rights and privileges as a superior court of criminal jurisdiction with respect
to the attendance, swearing and examination of witnesses; the production and
inspection of documents; the enforcement of its orders; and all other matters that
are necessary or proper for the exercise of its jurisdiction.
[13]
Subsection 180(1) of the NDA provides that
courts martial shall be public, subject to the exceptions set out in subsection
180(2). Section 180 of the NDA reads:
180 (1) Subject to subsections (2) and (3),
courts martial shall be public and, to the extent that accommodation permits,
the public shall be admitted to the proceedings.
(2) A court martial may order that the
public be excluded during the whole or any part of its proceedings if the court
martial considers that it is necessary
(a) in the
interests of public safety, defence or public morals;
(b) for the
maintenance of order or the proper administration of military justice; or
(c) to prevent
injury to international relations.
(3) Witnesses are not to be admitted to the
proceedings of a court martial except when under examination or by specific
leave of the court martial.
(4) For the purpose of any deliberation, a
court martial may cause the place where the proceedings are being held to be
cleared.
[14]
The role and functions of the Court Martial
Administrator [CMA] are set out in sections 165.18 through 165.2 of the NDA, as
well as section 101.17 of the Queen’s Regulations and Orders for the
Canadian Forces [QR&Os]. Specifically, the CMA is responsible for:
a)
managing the Office of the Chief Military Judge
and supervision of personnel, other than military judges, within that Office;
b) convening General Courts Martial and Standing Courts Martial;
c) appointing members of General Courts Martial;
d) assigning a court reporter for each court martial or other hearings
before a military judge;
e) controlling and maintaining the schedule for courts martial and
other hearings before a military judge;
f) maintaining a file in respect of each court martial or other hearings
before a military judge; and
g) retaining the recording and minutes of proceedings of each court
martial and other hearings before a military judge.
[15]
Pursuant to subsection 165.19(3) of the NDA, the
CMA acts under the general supervision of the Chief Military Judge. The Office
of the Chief Military Judge was created through a Ministerial Organization
Order and is designated as a unit of the Canadian Forces embodied in the
Regular Force. Its role is set out in the Canadian Forces Organization Order 3763
issued on behalf of the Chief of Defence Staff. Specifically, the Office of the
Chief Military Judge is responsible for:
a)
appointing military trial judges to preside at
Standing Courts Martial and Special General Courts Martial;
b) appointing military trial judges to officiate as judge advocates at
Disciplinary and General Courts Martial;
c) appointing Presidents and members of Disciplinary and General Courts
Martial; and,
d) providing court reporting services and transcripts of the
proceedings of courts martial.
[16]
Also, the Chief Military Judge may, with the
Governor in Council’s approval and after consultation with a rules committee
established under regulations made by the Governor in Council, make rules
governing, among other things, the minutes of proceedings of courts martial and
other proceedings as well as public access to documents, exhibits or other
things connected with any proceeding (subsections 165.3(e) and 165.3(f) of the
NDA).
[17]
Although a draft Policy on the Publication of Court
Martial Information dated September 17, 2004 was prepared by the Office of the
Chief Military Judge, the evidence is unclear whether the policy was ever
adopted. In an email dated September 23, 2014, the CMA informed the CBC’s
counsel that her office had been unable to locate a signed copy of the policy
and that she had no indication as to whether it had ever been published or made
available to the public. She further indicated that she considered the draft
policy to be of no force and effect.
IV.
Questions in issue
[18]
Although framed differently by the parties, the
following issues arise from the application for judicial review:
a)
Is this application for judicial review out of
time?
b)
What is the appropriate standard of review?
c)
Is the CMA’s continued refusal to provide copies
of unredacted decisions subject to a publication ban lawful?
d)
What remedies should be awarded, if any?
V.
Analysis
A.
Is the application for judicial review out of
time?
[19]
The Attorney General of Canada [AGC] submits
that the application for judicial review was brought outside of the thirty (30)
day time limit prescribed in subsection 18.1(2) of the Federal Courts Act,
RSC 1985, c F-7. The decision refusing to provide unredacted court martial decisions
was initially communicated to Ms. Houlihan on June 12, 2013, and again on
August 2, 2013, when she was advised that decisions under publication ban had to
be severed to remove any information which could potentially identify a
complainant or a witness. The AGC states that the CBC took no steps to
challenge that decision until April 2014 and provided no explanation for the
delay in pursuing the matter. The AGC also submits that even after the fourteen
(14) decisions at issue were provided to Ms. Houlihan on March 26, 2014, the CBC
waited until October 8, 2014, to file its Notice of Application for judicial
review in this Court. The CBC’s decision to bring an application before the
Office of the Chief Military Judge in April 2014 does not justify the CBC’s failure
to abide by the statutory thirty (30) day limitation period.
[20]
The CBC argues that the AGC’s objection is itself
time-barred because Prothonotary Tabib directed the Registry of the Federal
Court on October 9, 2014 to accept the CBC’s Notice of Application for filing.
The CBC also argues that in any event, the AGC’s objection is without merit for
the following reasons. First, the CBC exhausted “the
internal avenues of accountability within the military justice system” in
raising the matter with the Office of the Chief Military Judge. Secondly, the
thirty (30) day limitation period in subsection 18.1(2) of the Federal
Courts Act applies to “a decision or order” of
a federal administrator. Judicial review is also available where there is a
continuing course of conduct that is illegal and will continue unless the Court
intervenes. Third, even if subsection 18.1(2) of the Federal Courts
Act is applicable, this would be a proper case for the Court to grant an
extension of time for the filing of the judicial review application. Finally,
dismissing the judicial review application would achieve no practical benefit
because the CBC or another party could make similar requests in the future and
seek judicial review of the CMA’s decision.
[21]
I agree with the CBC that the subject-matter of
the application for judicial review is a continuing course of conduct and as a
result, the application for judicial review is not time-barred.
[22]
It is well established in jurisprudence that an
application for judicial review under section 18.1 of the Federal Courts Act
can encompass more than just a “decision or an order”.
Pursuant to subsection 18.1(1), an application may be brought by “anyone directly affected by the matter in respect of which
relief is sought”. The word “matter” can include a course of conduct in
respect of which a remedy may be available under section 18 of the Federal
Courts Act (Krause v Canada, [1999] 2 FC 476 at para 21, [1999] FCJ
No 179 (FCA) (QL) [Krause]; May v CBC/Radio Canada, 2011 FCA 130
at para 10 [May]; Airth v Canada (National Revenue), 2006 FC 1442
at paras 9, 10 [Airth].
[23]
The thirty (30) day limitation period to bring
an application for judicial review set out in subsection 18.1(2) of the Federal
Courts Act applies only “in respect of a decision
or an order of a federal board, commission or other tribunal”. Where the
application for judicial review is not in respect of a “decision
or order”, the time limit imposed by subsection 18.1(2) does not apply (Krause
at paras 23, 24; May at para 10; Airth at para 5; Telus
Communications Company v Canada (Attorney General), 2014 FC 1 at paras 28,
29).
[24]
The parties agree, and I concur, that there is
no dispute that the CMA constitutes a “federal board,
commission or other tribunal” within the meaning of subsections 2(1), 18(1)
and 18.1(2) of the Federal Courts Act. The CMA’s refusal to provide
unredacted copies of the requested decisions and access to court martial records
is an administrative one and one that is subject to judicial review by this
Court.
[25]
The issue, however, is whether the CBC is
seeking judicial review of a “decision or order”
or of a “matter”.
[26]
The CBC is challenging the CMA’s continued
refusal to provide unredacted copies of court martial decisions subject to a
publication ban. The application for judicial review does not arise from a
single decision of the CMA. Rather, the CBC requested a number of decisions
involving a publication ban at different times, and on each occasion, the CMA
informed the CBC that it was required, pursuant to the publication ban, to
remove any information that could disclose the identity of the complainant or a
witness in the case. In my view, it is the ongoing practice of the CMA to redact
the court martial decisions subject to a publication ban that is alleged to be
unlawful and subject to judicial review.
[27]
Moreover, the relief sought by the CBC in its Notice
of Application for judicial review also confirms that it is a course of conduct
that is at issue: the relief sought includes a declaration that the Privacy
Act does not apply to the court records of the courts martial, as well as
an order of mandamus for the CMA to provide the CBC with unredacted copies
of the requested decisions. While I recognize that the CBC is also seeking an
order setting aside the decision of the CMA refusing to release unredacted
copies of the fourteen (14) court martial decisions, I do not think this
particular relief takes away from the conclusion that it is a course of conduct
that is at issue. Fundamentally, the CBC is contesting the CMA’s practice of
redacting court martial decisions that are subject to a publication ban.
[28]
Even if I were to find that the CBC was late in
bringing its application for judicial review, I consider this to be a proper
case in which to grant an extension of time.
[29]
The four (4) factors to be considered in
determining whether or not to grant an extension of time are set out in Canada
(Attorney General) v Hennelly, [1999] FCJ No 846 at para 3 (FCA) (QL). To
be successful, an applicant must demonstrate: 1) a continuing intention to
pursue his or her application; 2) the application has some merit; 3) no
prejudice to the respondent arises from the delay; and 4) a reasonable explanation
for the delay exists.
[30]
Here, the CBC has demonstrated a continuing
intention to pursue the matter by its application to the Office of the Chief
Military Judge. In addition, on June 23 and September 20, 2014, the CBC
inquired whether any copy existed of the Chief Military Judge’s Policy on the
Publication of Court Martial Information. A response to the query was received
on September 23, 2014 and the CBC filed its Notice of Application for judicial
review on October 9, 2014. The CBC has repeatedly taken the position that the
CMA had no authority to redact information from the court martial decisions.
[31]
There is also merit to the application given
that the open court principle has long been recognized by the courts as a
cornerstone of democracy. Moreover, the AGC has not demonstrated any prejudice
arising from the timing of the application. In fact, the AGC took no position
on the CBC’s request for an extension of time. Finally, the CBC’s explanation that
it wanted to exhaust the internal avenues of the military justice system prior
to bringing an application for judicial review before this Court is reasonable in
the circumstances of this case.
[32]
While not specifically a factor in considering
whether to grant an extension of time, I see no benefit to concluding that the application
for judicial review is out of time. Nothing would prevent the CBC from requesting
access to a different court martial decision that is subject to a publication
ban and then seek judicial review of any decision refusing to provide access to
an unredacted version of the said decision. If that were the case, the very
same conduct would be at issue. Since the parties have already argued the merits
of the application, I consider that deciding the matter at this time would be a
more efficient use of the Court’s resources (Airth at para 12).
B.
What is the appropriate standard of review?
[33]
The first step in determining the appropriate
standard of review is to establish whether the existing jurisprudence has
already settled, in a satisfactory manner, the degree of deference to be
afforded to a particular category of question. If it has not, the reviewing
court must then proceed to conduct a contextual analysis of the decision to
determine the appropriate standard of review and consider a number of relevant
factors, including: 1) the presence or absence of a privative clause; 2) the
purpose of the tribunal; 3) the nature of the question at issue; and 4) the
expertise of the tribunal (Dunsmuir v New Brunswick, 2008 SCC 9 at paras
57, 62, 64, [2008] 1 S.C.R. 190 [Dunsmuir]).
[34]
The CBC submits that the question of whether the
Privacy Act applies to the records of courts martial without
consideration for the open court principle raises a question of law that must
be assessed on a correctness standard of review. The CBC relies on the Federal
Court of Appeal decision in CMP v CMJ where the Court found that the decision
of the Chief Military Judge refusing to convene a court martial on the basis
that it would offend the open court principle raised a question of law reviewable
on a correctness standard of review.
[35]
The AGC submits that the appropriate standard of
review is reasonableness. The decision in CMP v CMJ is not determinative
as the decision refers to a decision of the Chief Military Judge, a judicial
officer, and not the CMA. Furthermore, the decision predates the reformulation of
the two-step standard of review analysis set out in Dunsmuir.
[36]
In CMP v CMJ, the Federal Court of Appeal
examined the open court principle in the context of the Chief Military Judge’s
refusal to assign a military judge because the charge sheet and accompanying
documentation contained classified information. The Chief Military Judge was of
the view that assigning a judge where a charge sheet is classified would be the
same as sanctioning a closed trial. Given this refusal, the CMA refused to
convene a Standing Court Martial because she could not identify the military
judge whose name would appear on the order.
[37]
In the case before me, the CBC is challenging
the CMA’s continued refusal to release unredacted court martial decisions in
which a publication ban was ordered. The CMA’s position is that in order to
comply with the publication bans and the Privacy Act, it must redact any
information that would identify the complainants before releasing copies of the
decisions to the CBC. With the exception of the decision in CMP v CMJ,
which is not directly on point, I am not aware of any other precedent involving
a decision of the CMA on the issues raised in this proceeding. Accordingly, the
second step in the Dunsmuir analysis is required.
[38]
Upon review of the relevant factors, I conclude
that the appropriate standard of review is that of correctness.
[39]
First, the duties of the CMA are mainly
administrative and its decisions are not protected by a privative clause in the
NDA. I recognize, however, that the absence of a privative clause is not
determinative (Dunsmuir at para 52; Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 25, [2009] 1 S.C.R. 339).
[40]
Second, although the court martial regime is unique
and the CMA has expertise in its administration, the interpretation of a
publication ban does not involve the interpretation of the CMA’s home statute. Rather,
it involves the interpretation of the term “publish” as found in the Criminal
Code provisions relating to publication bans in proceedings involving
sexual offences. This issue is not exclusive to the CMA. Moreover, the determination
of whether the disclosure prohibitions in the Privacy Act apply to the
records of courts martial is also a question of law. With respect to both
questions, the CMA’s expertise is not superior to that of this Court or any
other superior court.
[41]
Third, as stated above, the CMA’s role is
entirely administrative in nature and its purpose is to manage the Office of
the Chief Military Judge and to supervise the personnel within that office,
with the exception of the military judges. The CMA does not decide issues of
law.
[42]
Finally, the nature of the question at issue is
one that is of central importance to the legal system. The determination of
whether publication bans under the Criminal Code require that decisions
or court records be redacted prior to their release to a member of the public
is one that arises not only in the court martial regime but in all criminal
trials involving the prosecution of sexual offences where a publication ban has
been ordered. It also involves consideration of two (2) competing
interests, the open court principle and the protection of privacy, both of
which are entrenched in our Canadian judicial system.
C.
Is the CMA’s continued refusal to provide copies
of unredacted decisions subject to a publication ban lawful?
[43]
The CBC submits that the open court principle
applies to courts martial and that it extends to all facets of the court
martial process, including exhibits and the record of its proceedings. It is
also applicable after the proceedings have concluded. A publication ban
constitutes a limited restriction on the open court principle. When a trial
judge imposes a publication ban on the identity of a complainant, the public
and the media are not excluded from the courtroom and they retain access to the
court’s proceedings and records. Although Parliament has expressly provided for
more severe restrictions on public access to court proceedings, such as in
camera proceedings or the sealing of court files, a publication ban does not
constitute a sealing order.
[44]
The CBC further submits that even if the CMA had
the authority to expand the scope of the publication ban, the CMA failed to
apply the test enunciated by the Supreme Court of Canada in Dagenais v
Canadian Broadcasting Corp, [1994] 3 S.C.R. 835 at para 73 (QL) [Dagenais]
and reframed in R v Mentuck, 2001 SCC 76 at para 32, [2001] 3 S.C.R. 442 [Mentuck],
which set out the conditions under which the courts may limit the openness of
court proceedings. If the CMA had applied the test, no potential justification
would meet the criteria of the test.
[45]
The AGC submits that the CMA properly redacted
the names of complainants in six (6) court martial decisions. In each of the
fourteen (14) courts martial, the presiding military judge imposed a
publication ban pursuant to subsections 486(3), 486(4) or both, of the Criminal
Code (as they read in 2004). While commonly referred to as a “publication
ban”, the current statute refers not only to publication, but also to
broadcasting or transmitting information. Once ordered, publication bans are
mandatory and continue to be in force until lifted by a court where it has been
demonstrated that the circumstances have dramatically changed. Absent an order
lifting the ban, it is not open to the CMA to ignore the requirement imposed by
the military judges not to publish the names of the complainants in a publicly
available court decision.
[46]
The AGC further submits that the predominant purpose
of a section 486 publication ban is to protect the privacy of complainants and
to foster confidence in the justice system. Allowing the publication and
dissemination of court martial decisions that identify the complainants would
run counter to the objective and purpose of a publication ban. The prohibition
must be read purposively as requiring a restriction on identifying the
complainants on any document which will link them to the facts of the case.
[47]
The AGC also submits that the Dagenais/Mentuck
framework is not applicable as the CBC is not challenging the legality of the
publication ban and nothing in the CMA’s conduct has infringed the CBC’s
freedom of expression.
[48]
Finally, the AGC argues that the open court
principle has never been extended to include the right of the media to contact
victims of crime outside of court room proceedings years after the trials have
concluded. In the case at bar, the CBC is fully capable of reporting on the
court martial proceedings. It received all fourteen (14) decisions and the
documents received allow the CBC to know what transpired in court. Obtaining
the names of the complainants will not add to its understanding of the
proceedings.
[49]
In my view, the CMA erred in finding that the
publication bans required the redaction of the names of the complainants when
providing access to the requested court martial decisions. I have reached this
conclusion following an analysis of the open court principle, publication bans,
both generally and in the context of the Criminal Code, limitations on
the open court principle, the distinction between “publishing” and “accessing” information
in a court record and the application of the Privacy Act to the records
of the courts martial, all of which I will examine in the paragraphs below.
(1)
The open court principle
[50]
The Supreme Court of Canada has repeatedly
affirmed the importance of the open court principle. Starting in 1982, Justice
Dickson wrote in MacIntyre v Nova Scotia (Attorney General), [1982] 1
SCR 175 (WL) at para 59, “covertness is the exception
and openness the rule” and, at para 62, “the
rule should be one of public accessibility and concomitant judicial
accountability”. Later, in Canadian Broadcasting Corp v New Brunswick
(Attorney General), [1996] 3 S.C.R. 480 at para 22 [New Brunswick],
Justice La Forest described the open court principle as “one of the hallmarks of a democratic society” and at
para 23, “[o]penness permits public access to
information about the courts, which in turn permits the public to discuss and
put forward opinions and criticisms of court practices and proceedings”.
In 2005, in Toronto Star Newspapers Ltd v Ontario, 2005 SCC 41 at para
1, [2005] 2 S.C.R. 188 [Toronto Star Newspapers], Justice Fish wrote: “[i]n any constitutional climate, the administration of justice
thrives on exposure to light — and withers under a cloud of secrecy”.
More recently, in Canadian Broadcasting Corp v Canada (Attorney General),
2011 SCC 2 at para 1, [2011] 1 S.C.R. 19, Justice Deschamps commented as follows:
The open court principle is of crucial
importance in a democratic society. It ensures that citizens have access to
the courts and can, as a result, comment on how courts operate and on
proceedings that take place in them. Public access to the courts also
guarantees the integrity of judicial processes inasmuch as the transparency
that flows from access ensures that justice is rendered in a manner that is not
arbitrary, but is in accordance with the rule of law.
See also Edmonton Journal v Alberta
(Attorney General), [1989] 2 S.C.R. 1326 at paras 9 to 11, [1989] SCJ No 124 (QL);
Vancouver Sun (Re), 2004 SCC 43 at paras 23 to 27, [2004] 2 S.C.R. 332; Canadian
Broadcasting Corp v The Queen, 2011 SCC 3 at para 12, [2011] 1 S.C.R. 65 [Canadian
Broadcasting Corp], and AB v Bragg Communications Inc, 2012 SCC 46
at paras 11, 13, [2012] 2 S.C.R. 567 [Bragg Communications Inc].
[51]
The open court principle applies to all facets
of a court’s process. It also includes access to the exhibits and the audio
recordings of hearings (Canadian Broadcasting Corp at para 12; Singer
v Canada (Attorney General), 2011 FCA 3 (QL) at para 6).
[52]
It is undisputed that the open court principle
applies to courts martial. It is prescribed by section 180 of the NDA. The
military judge assigned to preside a court martial trial will be required, like
any other judge, to weigh a claim for non-disclosure against the open court
principle and to determine whether the information should be made available to
the public (CMP v CMJ at para 38).
(2)
Publication bans
[53]
While the open court principle has been
recognized as a pillar of a democratic society, the courts have also
consistently affirmed that other interests, such as the privacy of sexual
assault complainants, are equally as important (Canadian Newspapers Co v
Canada (Attorney General), [1988] 2 S.C.R. 122 at para 15 (QL) [Canadian
Newspapers]; Bragg Communications Inc at paras 11, 17, 25, 29).
[54]
In order to accommodate these competing
interests, the courts have used a number of measures to minimally impair the
open court principle and still protect other interests. A publication ban is
one of several forms of relief which limit the open court principle.
[55]
At page I-7 of his publication The Law of
Publication Bans, Private Hearings and Sealing Orders, (Toronto, Carswell,
2006) (loose-leaf updated 2016), the author James Rossiter, defines a
publication ban as “a statutory or judicial prohibition
on disclosing information, usually in a publication or broadcast, which is the
subject of the ban”.
[56]
A publication ban can be mandatory or
discretionary. If mandatory, it can be automatic or at the request of a party.
If discretionary, it may be either based in statute or the common law. The ban
may also be limited in time or of infinite duration (Rossiter at I-7 and I-8).
[57]
In Dagenais above, Chief Justice Lamer
enumerated a number of advantages which result from ordering publication bans.
They include: 1) preventing jury influence; 2) maximizing the chances that
witnesses will come forward and testify; 3) protecting vulnerable witnesses; 4) preserving
the privacy of individuals involved in a criminal process; 5) maximizing the
chances of rehabilitation for young offenders; 6) encouraging the reporting of
sexual offences; 7) saving the financial and/or emotional costs to those
involved of the alternatives to publication bans, such as trial delays and
changes in venues; and 8) protecting national security (Dagenais at para
83). He also highlighted some of the reasons for not ordering a publication ban.
In particular, the absence of a ban will: 1) maximize the chances that individuals
will learn about a case and come forward with new information; 2) prevent
perjury by placing witnesses under public scrutiny; 3) prevent state
and/or court wrongdoing by placing the criminal justice process under public
scrutiny; 4) reduce crime through the public expression of disapproval for
crime; and 5) promote the public discussion of important issues (Dagenais
at para 84).
[58]
In the context of sexual offence trials, publication
bans also have the purpose of protecting the privacy of the complainants. In Canadian
Newspapers, the Supreme Court of Canada confirmed that publication bans in
sexual assault proceedings foster complaints by victims of sexual assault by
protecting them from the trauma of wide-spread publication resulting in
embarrassment and humiliation. Publication bans encourage victims to come
forward and complain which in turn facilitates the prosecution and conviction
of those guilty of sexual offences (Canadian Newspapers at para 15).
[59]
Where a publication ban is discretionary, the judge
is required to apply the Dagenais/Mentuck test enunciated by the Supreme
Court of Canada in considering whether a publication ban should be ordered. A
publication ban should only be ordered when it is: 1) necessary to prevent
a serious risk to the proper administration of justice because reasonable
alternative measures will not prevent the risk; and 2) the positive effects of
the ban outweigh the negative effects on the rights and interests of the
parties and public, including the effects on the right to free expression, the
right of an accused to a fair and public trial and the efficacy of the
administration of justice (Mentuck at para 32). If the publication ban
is mandatory, no balancing of interests is required.
[60]
In 2004, publication bans in proceedings
involving sexual offences were ordered pursuant to subsections 486(3) and 486(4)
of the Criminal Code which read:
486(3) Subject to subsection (4), the
presiding judge or justice may make an order directing that the identity of a
complainant or a witness and any information that could disclose the identity
of the complainant or witness shall not be published in any document or
broadcast in any way, when an accused is charged with…
486(4) The presiding judge or justice shall
(a) at the first
reasonable opportunity, inform any witness under the age of eighteen years and
the complainant to proceedings in respect of an offence mentioned in subsection
(3) of the right to make an application for an order under subsection (3); and
(b) on application
made by the complainant, the prosecutor or any such witness, make an order
under that subsection.
[Emphasis added.]
[61]
Today, they are governed by section 486.4 of the
Criminal Code:
486.4 (1) Subject to subsection (2), the
presiding judge or justice may make an order directing that any information
that could identify the victim or a witness shall not be published in any
document or broadcast or transmitted in any way, in proceedings in respect
of
(a) any of the
following offences:
[…]
486.4(2) In proceedings in respect of the
offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
shall
(a) at the first
reasonable opportunity, inform any witness under the age of eighteen years and
the victim of the right to make an application for the order; and
(b) on application
made by the victim, the prosecutor or any such witness, make the order.
[Emphasis added.]
[62]
Although the Criminal Code now refers to “transmitting”
information in addition to publishing and broadcasting the information, I do
not consider that the change in legislation affects the outcome of this application
for judicial review.
(3)
Other limitations on the open court principle
[63]
In addition to publication bans, there are a
number of other forms of relief that the courts may use to limit the open court
principle.
[64]
For instance, closed hearings, otherwise
referred to as in camera hearings or exclusion orders, restrict public
attendance at a hearing. They are more restrictive than publication bans
because they have the effect of ensuring that the public will not be able to
disclose what occurred at the hearing. This form of limitation on the open
court principle can be based in statute (Criminal Code, subsection 486(1))
or in common law based on a judge’s inherent jurisdiction (Named Person v
Vancouver Sun, 2007 SCC 43 at paras 56, 91, 96, [2007] 3 S.C.R. 253 [Vancouver
Sun]; Rossiter at I-11 and I-12).
[65]
A sealing order, also known as a confidentiality
order, restricts public access to information found in a court record. Generally,
when a sealing order has been issued, the confidential information will be
placed in a separate envelope kept by the Court and will not be accessible to
the general public for review (Vancouver Sun at paras 91, 95; Toronto
Star Newspapers Ltd at para 18; Rossiter at I-13 and I-14).
[66]
Courts have also ordered that certain types of
information be blacked-out, redacted or edited from public documents found on
the public court record. In doing so, the public has access to the documents
but the sensitive information is protected (R v Twitchell, 2009 ABQB 644
(QL) at para 45 [Twitchell].
[67]
An anonymity order can also be requested by the
parties, in which case initials or a pseudonym will be used in court filings
and during the hearing. An anonymity order will allow the public to attend the
hearing and to review the court records but will prevent it from knowing the
identity of the person claiming anonymity. For instance, in Bragg
Communications Inc, the applicant had brought an application for an order
requiring an Internet service provider to disclose the identity of the person
who had used an IP address to publish a Facebook profile, which included her
picture, a modified version of her name and other particulars identifying her.
She asked the court for permission to proceed anonymously and for a publication
ban on the content of the Facebook profile. On appeal, the Supreme Court of
Canada agreed that she could proceed anonymously. It also found that a
publication ban was not required if her identity was protected (Bragg
Communications Inc at paras 9 and 30; see also Rossiter at I-14 and I-15).
[68]
The courts may also order that a witness testify
behind a screen or other device that will protect the image of the witness from
members of the public (Criminal Code, subsection 486(1); Vancouver
Sun at para 56).
[69]
These examples are by no means exhaustive.
However, in each case, the Court will seek to minimally impair the open court
principle to ensure that the public retains as much access as possible to the
court’s proceedings.
(4)
“publish” versus “access”
[70]
The courts have distinguished the concept of
publication from that of providing access. In MacDonell c Flahiff, 1998
CanLII 13149 (QC CA) [MacDonell], two (2) appellants appealed an order
allowing access to certain search warrants due to prejudice to their right to a
fair trial. The Court of Appeal of Québec concluded that it was not accessing
the documents which threatened their right to a fair trial, but the possibility
of premature publication and unfair pre-trial publicity. In order to balance
their right to a fair trial and the open court principle, the Court ordered
that the press be granted access to the search warrants, but subject to a
publication ban (MacDonell at 24 and 25).
[71]
The Court of Appeal of Ontario adopted the same
reasoning in Ottawa Citizen Group Inc v Canada (Attorney General), [2005]
OJ No 2209, 75 OR (3d) 590 (QL) [Ottawa Citizen Group]. The Court
allowed an appeal of a sealing order because the trial judge did not consider a
reasonable alternative to a sealing order, and in particular, an order
permitting the media access to the names of the subjects of the search warrants
but, at the same time, prohibiting their publication in any articles or
editorials (Ottawa Citizen Group at paras 43 and 48).
[72]
While they cannot be considered binding authorities
and no evidence was adduced regarding their application, the court access
policies submitted by the CBC at the hearing also demonstrate that courts
distinguish access from publication bans. For example, the Ontario Superior
Court of Justice policy states:
When a publication ban is imposed by the
court (e.g., s.486.4 related to sexual offences or s. 517 related to judicial
interim release or bail hearings) or is automatically provided for (e.g., s.
542 related to preliminary hearings), the court file and documents are still
accessible to the public. Staff will notify the recipient that the file or
document is under a publication ban and will warn him or her that publication,
broadcasting or transmitting in any way the information governed by the publication
ban could be a violation of the law.
[Emphasis added.]
(Ministry of the Attorney General of
Ontario, Court Services Division, Policy and Procedures on Public Access to
Court Files, Documents and Exhibits, (2006), as amended, s. 2.2.6)
[73]
In Alberta, the Public and Media Access Guide,
2013 provides at page 16:
Publication bans may be required by law or a
court order. Publication bans prohibit publishing certain information related
to a court proceeding. A publication ban will prohibit publishing the information
in print, radio, television or via the Internet. Publication bans restrict only
publication, not access. A publication ban does not limit viewing, searching,
or copying for private use, unless those restrictions are specified in law or
the court order.
[Emphasis added.]
(Alberta Courts, Public and Media Access
Guide, August 1, 201, s. 2.4 (e))
[74]
As for the Office of the Chief Military Judge,
although a draft Policy on the Publication of Court Martial Information was
prepared in 2004, it appears not to have been adopted and it is considered by
the CMA to be of no force and effect.
[75]
While both parties agree that the open court
principle applies to the court martial system, they disagree on the scope of
the publication bans that were ordered in 2004. The AGC contends that in
providing an unredacted copy of the court martial decisions, the CMA is in fact
“publishing” the identity of the complainants. The CBC argues on the other hand
that the AGC’s interpretation amounts to converting the publication ban order
into a sealing order.
[76]
With the exception of five (5) decisions, all of
the court martial decisions released to the CBC include the following warning:
Subject to sub-section (sic) 486(3) and
486(4) of the Criminal Code and section 179 of the National Defence
Act, the court has directed that the identity of the complainant and any
information that would disclose the identity of the complainant shall not be published
in any document or broadcast in any way.
[Emphasis added.]
[77]
The warnings which appear in the decisions rendered
in French read as follows:
Cette cause fait l’objet d’une ordonnance
interdisant de publier ou de diffuser de quelque façon que ce
soit l’identité de la plaignante ou des renseignements qui permettraient de la
découvrir.
[Emphasis added.]
[78]
Counsel for the AGC indicated at the oral
hearing that she believed the above warnings constituted the publication ban
order. She did not believe that there were separate publication ban orders
because the publication bans were mandatory. No evidence was adduced with
regards to the circumstances under which the bans were ordered and whether any other
form of protective order was requested and considered. Accordingly, I must
assume, for the purpose of my analysis, that the warnings constitute the publication
ban orders and that there are no other protective orders in place.
[79]
While I recognize the broad policy objective of
encouraging victims to come forward and the importance of protecting their
privacy, I cannot agree with the AGC’s position that the act of providing, upon
request, a copy of an unredacted decision constitutes “publishing” within the
meaning of either subsection 486(3) of the 2004 version of the Criminal Code
or section 486.4 of the current version of the Criminal Code.
[80]
When a publication ban is ordered, members of
the public, including the media, are still permitted to attend the hearing and
have access to the identity and personal information of the complainant. If the
judge considers that more protection is required, he can order the exclusion of
the public during the complainant’s testimony pursuant to subsection 486(1) of
the Criminal Code (under both the 2004 version and current version). He
can also order that the complainant testify using a pseudonym or order that the
complainant’s name and other personal information be redacted from the public
record.
[81]
In addition, under the terms of the court access
policies referred to above, if a member of the public were to attend the
registry office and make a request to see a court record in which a publication
ban has been ordered, the person would be entitled to view the contents of the record.
[82]
If a person can attend the hearing and review
the file, I see no basis for refusing a request to obtain an unredacted copy of
a document which has not been the subject of a redaction, sealing or anonymity order.
[83]
Moreover, when the Supreme Court of Canada
examined the purpose of publication bans in sexual assault trials in
Canadian Newspapers, it spoke of the need to protect complainants from “the trauma of wide-spread publication”. It also spoke
of a victim’s fear of “publicity or embarrassment”
(Canadian Newspapers at paras 15 and 18). Providing access to an
unredacted court record or providing a copy of an unredacted decision upon
request cannot properly be considered to be “wide-spread” publication.
[84]
In my view, the word “publish” in the context of
the publication bans ordered by the military judges pursuant to subsection
486(3) of the Criminal Code must be interpreted as meaning a prohibition
to disseminate the information to the general public or, in other words,
providing widespread knowledge of the information either in print or via the Internet.
[85]
Any other conclusion would render meaningless
the distinction between the different forms of protective relief such as redaction
orders, publication bans, sealing orders and exclusion orders. Court registry
officers would be left with the difficult task of interpreting the scope of the
publication bans and what protective relief was intended by the judges when the
publication bans were ordered. Also, keeping in mind that the bans relate not
only to the identity of the complainants but to all the information which could
lead to their identification, I am left to wonder how, in practical terms, the
publication bans would be managed at an operational level and in particular,
whether the identifying information would be removed prior to being put on the
court record or only when someone asks to review the court record. In the
latter case, the responsibility of determining what information would need to
be redacted would again be left to court registry officers.
[86]
I note that the word “publish” was interpreted
by the Supreme Court of Canada in FN (Re), 2000 SCC 35, [2001] 1 S.C.R. 880
[FN]. There, the appellant, a young person under the Young Offenders
Act, RSC 1985, c Y-1 [YOA], had applied to the Supreme Court of
Newfoundland, Trial Division, for an order of prohibition on the ground that
the Youth Court had acted in excess of its jurisdiction by routinely providing
school boards with a photocopy of its docket. The Supreme Court of Canada
reviewed the provisions of the YOA and, in discussing the need for
confidentiality in young offender matters, the Court noted that the YOA created
two (2) distinct but mutually reinforcing regimes to control information concerning
a young offender. The first set of provisions commencing at subsection 38(1)
established a general prohibition that “no person shall
publish by any means any report” identifying a young offender with an
offence or proceeding under the YOA. The second regime, in sections 40 to 44, applied
to the maintenance and use of court records. The Court found that the word
“publish” used in subsection 38(1) of the YOA should receive a purposive
interpretation and that it included sharing the controlled information with the
community or any part thereof not authorized to receive it. The Court found
that the communication would have to be more tightly tailored to comply with
the non-disclosure provisions of the YOA than by way of the general
distribution of all dockets to all school boards.
[87]
I do not believe that the Supreme Court of
Canada’s interpretation of the term “publish” in the FN case can be
imported into this case. In interpreting the word “publish”, the Court
explicitly stated that it was in the context of the YOA. The YOA clearly distinguished
between the concepts of publication and access to court records. In particular,
section 44.1 of the YOA specifically provided that any record dealing with
matters arising out of the proceedings under the YOA would be made available
for inspection only to those persons identified in the provision. In all other
cases, judicial authorization was required. In addition, subsection 46(1)
explicitly provided that no record kept pursuant to sections 40 to 43 of the
YOA could be made available for inspection, and no copy, print or negative
thereof or information contained therein could be given to any person where to
do so would serve to identify the young person. The Criminal Code
provisions relating to publication bans in proceedings involving sexual
offences do not provide any such limitations on access to court records.
[88]
The AGC also relied on a number of other decisions
in support of its argument that the concept of “publication” includes providing
access to an unredacted decision in a public court record.
[89]
One of them is the Twitchell decision
referred to above. In that case, the Crown brought an application for a sealing
order and publication ban of certain court materials on file. The application
was opposed by the media. The Alberta Court of Queen’s Bench observed that a
sealing order was more intrusive than a publication ban and that it should be
used as an exceptional remedy as opposed to a publication ban which could be
considered a more limited intrusion into the open court principle (para 24). The
Court added that a publication ban does not deny the media or private
individuals the opportunity to observe and scrutinize court proceedings; it
only restricts the capacity of those parties to communicate their observations
to others (para 25). The Court found that the identity of witnesses and a
complainant along with their personal information should be protected and that the
highest level of protection in the nature of a sealing order was appropriate in
that case (para 44). The Court observed however that the correct phraseology
was not a sealing order. In fact, there was a less intrusive way in which the
names, phone numbers, addresses, careers and occupations and other personal
identifying information could be protected and that was “by simply redacting this information from the materials
before they became available to those with interest” (para 45).
[90]
While this decision affirms the importance of
the privacy interests of complainants, in my view, it reinforces the argument
that publication bans are distinct from redaction or sealing orders and that
publication bans are not intended to prevent access to the sensitive
information. It also confirms that trial judges have a number of measures at
their disposal to limit the open court principle when other interests might be
as important to protect.
[91]
The AGC also relied upon SDM v Alberta,
2002 ABQB 1132 (QL) which I find to be equally unpersuasive. In that case, the
Alberta Court of Queen’s Bench found that it was not required to order a
publication ban in a civil suit because the publication ban ordered in the
context of the criminal proceedings was still in effect and that it would be
sufficient to put a note on file in the civil proceedings concerning the
publication ban in effect. While I agree that this decision recognizes the
public objective of encouraging victims to come forward “without fear of being publicly embarrassed or humiliated”,
it does not stand for the proposition that publication bans prohibit obtaining
access to an unredacted decision.
[92]
Finally, the AGC relied on two (2) other
decisions emanating from the British Columbia Supreme Court to support its
argument that publication bans prohibit providing access to unredacted documents
disclosing the identity of complainants. First, in McClelland v Stewart
2006 BCSC 1948 (QL), the plaintiff was seeking access to documents during
examinations for discovery in a civil action involving sexual assault
allegations. In particular, the plaintiff sought to obtain Royal Canadian
Mounted Police [RCMP] files respecting a number of complainants or witnesses in
the criminal proceedings against the defendant and over whom publication bans
were ordered pursuant to section 486 of the Criminal Code. The
plaintiff’s counsel also sought an order to vary the publication bans. The
Court found that the information contained in the RCMP files regarding the
identity of the unknown complainants or witnesses fell under the protection of
the publication bans and that if the RCMP were free to provide access to
information that could identify a complainant or a witness to third parties,
the object of section 486 would be defeated. The Court ordered that the files
could be inspected by counsel in a redacted format preventing identification.
[93]
The second decision is British Columbia College
of Teachers v British Columbia (Ministry of the Attorney General), 2010
BCSC 847. The College was seeking to obtain a copy of the transcript of a
preliminary inquiry held in relation to charges against the respondent. It
wanted to use the transcript in disciplinary proceedings against the
respondent, a former member of the College. Two (2) publication bans had been
imposed by the judge who had presided over the preliminary inquiry: the first,
on the evidence pursuant to subsection 539(1) of the Criminal Code and
the second, on any information that could identify the child complainant
pursuant to subsection 486.4(2) of the Criminal Code. The parties had
conceded that the publication ban in that case had to continue and the College
had agreed to receive the transcript in a redacted format removing the
complainant’s name. Despite the petitioner’s assurances it would not publish the
transcript to which it was seeking access, the Court found that publication of
any information to the College identifying the complainant would be publication
in contravention of the publication ban. The Court ordered that the transcript
not be released to the College until the Crown reviewed it and redacted information
that could possibly identify the complainant.
[94]
With respect, I do not consider these two (2)
authorities to be persuasive or binding upon this Court for the following
reasons. It is unclear from the decisions whether the parties argued the open
court principle and the distinction between the different forms of relief available
to trial judges. More importantly however, in the end, both judges exercised
their inherent jurisdiction and modified the terms of the publication bans by
allowing the production of the documents in a redacted format. Unlike the
judges in those two (2) cases, the CMA does not have the inherent jurisdiction
to modify the publication bans nor does she have the authority to redact
information from the decisions in the absence of a judicial order permitting
her to do so.
[95]
Both in written submissions and in oral
argument, the AGC argued that the open court principle does not include the
right to communicate with the complainants directly and that it is exactly what
a publication ban is intended to prevent. I do not consider that the CBC’s
intention to contact the named complainants impacts their right to obtain an
unredacted copy of the court martial decisions or to access the court records. As
explained by Justice MacPherson of the Ontario Court of Appeal in Ottawa
Citizen Group at paras 60 and 61:
60 If an
order coupling access to, but non-publication of, the names were made, Ms.
Jaimet would learn the identities of the subjects of the search warrants. She
could contact them, which is consistent with the news gathering role that is
part of the constitutionally protected freedom of the press: see Canadian
Broadcasting Corporation, supra, at para. 24. The press can contact
any Canadian citizen in the investigation of a potential story.
61 The subjects of the search
warrants would have to respond to the press contact. Their responses,
presumably, could range across the spectrum from "Get off my property, I
have nothing to say" to "I'm so glad to see you; do I have a story to
tell; please come in".
[96]
In summary, in the absence of an order
permitting the redaction, the sealing or the anonymization of the complainants’
identities when the initial publication bans were ordered, I conclude that the
CMA had no authority, in her capacity as Administrator of the Office of the
Chief Military Judge, to redact the information from the decisions and deny
access to it.
(5)
Application of the Privacy Act
[97]
In responding to Ms. Houlihan on August 2, 2013,
the CMA indicated the decisions under publication bans required extensive
review before they were released to ensure compliance with federal legislation,
including the Privacy Act.
[98]
The CBC submits that the Privacy Act does
not apply to courts martial, but even if it did, courts records, including
decisions, would fall into an exception. The CMA is not listed in the schedule
to the Privacy Act as one of the government institutions to whom it
applies. The CMA’s office is distinct from the Department of National Defence
or the Canadian Forces and it would be inconsistent with the constitutional
guarantee of institutional independence to fold the CMA’s office into the
Department of National Defence for the purposes of the Privacy Act.
Doing so would give the Minister of National Defence control over the CMA’s
records. The CBC also submits that if the Privacy Act applies to the CMA,
it would also have to apply to other courts, including this Court. Even if the Privacy
Act did apply, the release of the information requested in an unredacted
format would be authorized pursuant to the exceptions found in paragraphs 8(2)(a),
8(2)(b), 8(2)(m) and subsection 69(2) of the Privacy Act. In
support of its argument, the CBC relies on the decision of the Public Sector
Disclosure Protection Tribunal in El-Helou v Courts Administration Service,
2012 CanLII 30713 (CA PSDPT) [El-Helou].
[99]
The AGC submits that the Privacy Act
applies to the Office of the Chief Military Judge, given that it is part of the
Canadian Forces and that the obligations under the statute apply to all
government institutions, which include the Department of National Defence and
the Canadian Forces. The CMA, as a member of that office is subject to the same
chain of command and is therefore subject to the same obligations under the Privacy
Act. As such, the CMA has the obligation to protect the personal
information of the complainants. The existence of the publication bans,
combined with the principles of the Privacy Act, justified the CMA’s decision
to protect the identity of the complainants. The AGC further argues that none
of the exceptions advanced by the CBC apply to the disclosure of the
complainants’ identities.
[100] In my view, the Privacy Act does not support the CMA’s
interpretation that the identity of the complainants must be redacted and
withheld from the CBC. While the protections under the Privacy Act may
apply to the CMA’s administration records which I need not decide, the Privacy
Act provides an important exception to an institution’s obligation to
protect personal information. Pursuant to subsection 69(2) of the Privacy
Act, the prohibition on the use and disclosure of personal information
prescribed by sections 7 and 8 do not apply where the information is available
to the public. In rejecting an argument that the Privacy Act required
the record of a quasi-judicial proceeding be kept confidential in El-Helou,
Justice Martineau, in his capacity as Chairman of the Public Servants
Disclosure Protection Tribunal summarized his reasons for doing so as follows:
[78] The open court principle is a
cornerstone of the Canadian legal system. It applies not only to the hearing
itself, but may also apply to all of the proceedings prior to the hearing. It
applies to pleadings, and in this proceeding, to the Application, the statement
of particulars and supporting documents that are filed in accordance with this
Act and the Tribunal Rules.
[79] This principle can be limited in a
few ways. For example, informer’s privilege is unqualified and does not allow
the court to exercise its discretion. It may also be limited by statute. Generally
however, the court may exercise its discretion to limit the open court
principle by applying its discretion according to the test in Dagenais/Mentuck.
Therefore, the decision-maker would exercise his or her discretion, in its
consideration of a variety of protective orders that limit access to
information in the context of a proceeding. The open court principle applies to
this Tribunal and it will exercise its discretion to determine whether or not the
principle should be limited.
[80] The Privacy Act cannot have
the effect of limiting the scope of the open court principle in these
proceedings. Exceptions under the Privacy Act apply: the exception
pertaining to consistent use (subparagraph 8(2)(a)); the exception pertaining
to a purpose in accordance with an Act of Parliament or regulation made
thereunder (subparagraph 8(2)(b)); and the exception pertaining to public
interest (subparagraph 8(2)(m)). Due to the Charter protected open court
principle and its application to the Tribunal, personal information that is
obtained in the context of this Tribunal’s quasi-judicial functions is
otherwise available to the public. Therefore, the broad exception under
subsection 69(2) of the Privacy Act applies as well.
[101] The Federal Court of Appeal also considered the “publicly available”
exception in subsection 69(2) of the Privacy Act in Lukács v Canada (Transport,
Infrastructure and Communities), 2015 FCA 140. The applicant in that case,
a passenger rights advocate, sought access to unredacted documents with identifying
information that were part of the record in a quasi-judicial dispute resolution
process. In responding to the applicant, the respondents recognized that it was
subject to the open court principle but asserted that unlike courts of law, the
application of the principle was circumscribed by the provisions of the Privacy
Act. Before providing the requested materials, the respondents removed those
portions which contained personal information pursuant to section 3 of the Privacy
Act. The applicant contended that because the requested documents had been
placed on the respondents’ public record, they were publicly available and as
such, the prohibition on disclosure in subsection 8(1) of the Privacy Act did
not apply to the request by virtue of subsection 69(2) of the Privacy Act.
The Federal Court of Appeal found the applicant’s contention to be persuasive
and that the applicant was entitled to receive the documents he requested.
[102] As stated earlier in these reasons, courts martial are presumptively
public pursuant to subsection 180(1) of the NDA. By extension, so are court
martial records. Given my conclusion regarding the purpose and the scope of the
publication bans ordered in 2004 and, in the absence of a redaction, sealing or
anonymity order, the information the CMA wishes to protect is part of the
public record and as such, falls within the meaning of the exception contained
in subsection 69(2) of the Privacy Act.
[103] On a final note, I consider the CMA’s interpretation to be
untenable. Personal information is defined in section 3 of the Privacy Act
and it extends beyond just simply a name. If the disclosure prohibitions under
the Privacy Act applied, the CMA would be required not only to redact a
complainant’s personal information, but also personal information in relation
to all participants in the proceedings, including the witnesses and the
accused. The exemptions in the Privacy Act’s sister statute, the Access
to Information Act, RCS 1985 c A-1, would also require consideration in the
redaction process.
[104] In summary, I see no basis upon which to conclude that the Privacy
Act prohibitions on the use and disclosure of personal information would
apply to court martial decisions.
D.
Remedies
[105] In its Notice of Application for judicial review, the CBC seeks: 1)
an order setting aside the decision of the CMA refusing to provide unredacted copies
of the court martial decisions identified in the appendix to the application;
2) a direction that the CMA provide the CBC with unredacted copies of the
requested court records; and 3) a declaration that the Privacy Act does
not apply to the requested court records or to the records of other courts
martial, including any decisions, transcripts, audio recordings or exhibits of
a court martial.
[106] In oral argument, the CBC explained that the declaratory relief it
was seeking consisted of two (2) parts and proposed wording to that effect:
first, that the Privacy Act does not apply to the court records,
including decisions, transcripts, exhibits or other records of courts martial
as administered by the CMA and perhaps the Chief Military Judge and secondly,
that upon request by a member of the public, the CMA release copies of all
decisions and transcripts or audio recordings of the hearings, in an unredacted
format, absent any sealing order made by the military judge, on notice to the
media and in compliance with the open court principle.
[107] The AGC’s position is that it would be inappropriate for this court
to tell another court how it should deal with requests for documents which form
part of that court’s records. Moreover, the AGC submits that eight (8) out of
the fourteen (14) decisions did not include redactions and cannot be subject to
a direction.
[108] I do not find this to be a proper case for declaratory relief
notwithstanding my conclusion that the CMA’s refusal to provide unredacted
copies of the requested court martial decisions to be unlawful. I agree with
the AGC that it would be inappropriate for this court to impose upon the Office
of the Chief Military Judge a way of proceeding when dealing with requests for
information. Each court has jurisdiction over its own records. This includes
the responsibility of ensuring that access to the records conforms to
applicable laws and to the constitutional guarantees of the Canadian Charter
of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (UK), 1982, c 11.
[109] I also consider a declaration regarding the application of the Privacy
Act to be unnecessary. Courts often make findings on the applicability of statutes
in their reasons without having recourse to declaratory relief. Depending on
the level of court, such findings may or may not have any binding effect.
[110] In terms of mandatory relief, the CBC relies on the decision of the
Federal Court of Appeal in Canada (Public Safety and Emergency Preparedness)
v LeBon, 2013 FCA 55 at para 14, where the Court found that a mandatory
order could be issued where there was only a single legal avenue available that
the court had to enforce. As stated above, the CBC is requesting a direction
that the CMA will provide the CBC with unredacted copies of requested courts
records.
[111] I consider the direction requested by the CBC to be beyond the scope
of the CBC’s requests to the CMA. Ms. Houlihan initially requested a decision and
transcript in a particular court martial file. She received a redacted copy of
the decision. When asked whether she still required a copy of the transcript,
she indicated that it was not necessary at that time. When she requested the
fourteen (14) court martial decisions, she did not request the transcript of
the proceedings. Out of the fourteen (14) decisions, eight (8) contained no
redactions. The CBC then requested the decision and transcript or audio
recording in another court martial file from the Office of the Chief Military
Judge. That decision was not included in the list of decisions which are set
out in the CBC’s appendix to the notice of application. Upon review of the
requests made and responses received, it is my understanding that all that remains
outstanding are the six (6) decisions in which redactions were made. I also
consider the request to be insufficiently defined as no evidence was adduced as
to what in fact comprises the “record” of the courts martial. Accordingly, I am
not prepared to issue the order requested by the CBC.
[112] I now turn to the CBC’s request that the CMA’s decision refusing to
provide unredacted copies of the court martial decisions identified in the
appendix to the application be set aside. Even though I have characterized the
CMA’s refusal as “ongoing conduct” for the purposes of determining whether the
application was brought late, I am nonetheless of the view that the CMA’s
decision to provide redacted copies of the decisions in six (6) courts martial
communicated to the CBC on March 26, 2014 can and should be set aside. I am
also of the view that the matter should be returned to the CMA for
redetermination in accordance with these reasons given the absence of evidence
regarding the circumstances under which the publication bans were ordered and the
existence of other protective orders.
[113] For all the reasons above, the application for judicial review is allowed.
JUDGMENT
THIS COURT’S JUDGMENT is that :
1.
The application for judicial review is allowed.
2.
The decision of the Court Martial Administrator
refusing to provide unredacted copies of the six (6) court martial decisions communicated
to the Canadian Broadcasting Corporation on March 26, 2014 is hereby set aside
and the matter is returned to the Court Martial Administrator for
redetermination in accordance with these reasons.
3.
Upon agreement by the parties themselves, each
party shall bear its own costs.
"Sylvie E. Roussel"
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