SUPREME
COURT OF CANADA
Between:
A.B.
by her Litigation Guardian, C.D.
Appellant
and
Bragg
Communications Incorporated, a body corporate, and Halifax Herald Limited, a
body corporate
Respondents
-
and -
BullyingCanada
Inc., British Columbia Civil Liberties Association, Kids Help Phone, Canadian
Civil Liberties Association, Privacy Commissioner of Canada, Newspapers Canada,
Ad IDEM/Canadian Media Lawyers Association, Canadian Association of
Journalists,, Professional Writers Association of Canada, Book and Periodical
Council, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic,
Canadian Unicef Committee, Information and Privacy Commissioner of Ontario and
Beyond Borders
Interveners
Coram: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein
and Karakatsanis JJ.
Reasons
for Judgment:
(paras. 1 to 31)
|
Abella J. (McLachlin C.J. and LeBel,
Deschamps, Fish, Rothstein and Karakatsanis JJ. concurring)
|
A.B. v. Bragg Communications Inc., 2012 SCC
46, [2012] 2 S.C.R. 567
A.B., by her
Litigation Guardian, C.D. Appellant
v.
Bragg Communications Incorporated, a
body corporate,
and Halifax
Herald Limited, a body corporate Respondents
and
BullyingCanada Inc., British Columbia
Civil Liberties
Association, Kids Help Phone, Canadian
Civil Liberties
Association, Privacy Commissioner of
Canada, Newspapers
Canada, Ad IDEM/Canadian Media Lawyers
Association,
Canadian Association of Journalists,
Professional Writers
Association of Canada, Book and
Periodical Council,
Samuelson‑Glushko Canadian
Internet Policy and Public
Interest Clinic, Canadian Unicef
Committee, Information
and Privacy
Commissioner of Ontario and Beyond Borders Interveners
Indexed as: A.B. v.
Bragg Communications Inc.
2012 SCC 46
File No.: 34240.
2012: May 10; 2012: September 27.
Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella,
Rothstein and Karakatsanis JJ.
on appeal from the court of appeal for nova scotia
Courts
— Open court principle — Publication bans — Children — 15‑year-old
victim of sexualized cyberbullying applying for order requiring Internet
provider to disclose identity of person(s) using IP address to publish fake and
allegedly defamatory Facebook profile — Victim requesting to proceed
anonymously in application and seeking publication ban on contents of fake
profile — Whether victim required to demonstrate specific harm or whether court
may find objectively discernable harm.
A
15-year-old girl found out that someone had posted a fake Facebook profile
using her picture, a slightly modified version of her name, and other
particulars identifying her. The picture was accompanied by unflattering
commentary about the girl’s appearance along with sexually explicit references.
Through her father as guardian, the girl brought an application for an order
requiring the Internet provider to disclose the identity of the person(s) who
used the IP address to publish the profile so that she could identify potential
defendants for an action in defamation. As part of her application, she asked
for permission to anonymously seek the identity of the creator of the profile
and for a publication ban on the content of the profile. Two media groups
opposed the request for anonymity and the ban. The Supreme Court of Nova
Scotia granted the request that the Internet provider disclose the information
about the publisher of the profile, but denied the request for anonymity and
the publication ban because there was insufficient evidence of specific harm to
the girl. The judge stayed that part of his order requiring the Internet
provider to disclose the publisher’s identity until either a successful appeal
allowed the girl to proceed anonymously or until she filed a draft order which
used her own and her father’s real names. The Court of Appeal upheld the
decision primarily on the ground that the girl had not discharged the onus of
showing that there was evidence of harm to her which justified restricting
access to the media.
Held:
The appeal should be allowed in part.
The
critical importance of the open court principle and a free press has been
tenaciously embedded in the jurisprudence. In this case, however, there are
interests that are sufficiently compelling to justify restricting such access:
privacy and the protection of children from cyberbullying.
Recognition
of the inherent vulnerability of children has consistent and deep roots in
Canadian law and results in the protection of young people’s privacy rights
based on age, not the sensitivity of the particular child. In an application
involving cyberbullying, there is no need for a child to demonstrate that he or
she personally conforms to this legal paradigm. The law attributes the
heightened vulnerability based on chronology, not temperament.
While
evidence of a direct, harmful consequence to an individual applicant is
relevant, courts may also conclude that there is objectively discernable harm. It
is logical to infer that children can suffer harm through cyberbullying, given
the psychological toxicity of the phenomenon. Since children are entitled to
protect themselves from bullying, cyber or otherwise, there is inevitable harm
to them — and to the administration of justice — if they decline to take steps
to protect themselves because of the risk of further harm from public
disclosure. Since common sense and the evidence show that young victims of
sexualized bullying are particularly vulnerable to the harms of revictimization
upon publication, and since the right to protection will disappear for most
children without the further protection of anonymity, the girl’s anonymous
legal pursuit of the identity of her cyberbully should be allowed.
In
Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R.
122, prohibiting identity disclosure was found to represent only minimal harm
to press freedom. The serious harm in failing to protect young victims of
bullying through anonymity, as a result, outweighs this minimal harm. But once
the girl’s identity is protected through her right to proceed anonymously,
there is little justification for a publication ban on the non‑identifying
content of the profile. If the non‑identifying information is made
public, there is no harmful impact on the girl since the information cannot be
connected to her. The public’s right to open courts — and press freedom —
therefore prevail with respect to the non‑identifying Facebook content.
Cases Cited
Referred to: Vancouver
Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332; Dagenais v. Canadian
Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76,
[2001] 3 S.C.R. 442; Edmonton
Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Attorney General of Nova
Scotia v. MacIntyre, [1982] 1 S.C.R. 175; Canadian Broadcasting Corp. v.
Canada (Attorney General), 2011 SCC 2, [2011] 1 S.C.R. 19; Canadian
Broadcasting Corp. v. The Queen, 2011 SCC 3, [2011] 1 S.C.R. 65; R.
v. Oakes, [1986] 1 S.C.R. 103; RJR‑MacDonald Inc. v. Canada
(Attorney General), [1995] 3 S.C.R. 199; Thomson Newspapers Co. v.
Canada (Attorney General), [1998] 1 S.C.R. 877; R. v. D.B., 2008 SCC
25, [2008] 2 S.C.R. 3; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; Toronto Star Newspaper Ltd. v. Ontario, 2012 ONCJ 27 (CanLII); R. v. L. (D.O.),
[1993] 4 S.C.R. 419; Doe v. Church of Jesus Christ of Latter‑Day
Saints in Canada, 2003
ABQB 794, 341 A.R. 395; R.
v. R.(W.), 2010 ONCJ 526
(CanLII); Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2
S.C.R. 122; R. v. D.H., 2002 BCPC 464 (CanLII); F.N. (Re),
2000 SCC 35, [2000] 1 S.C.R. 880.
Statutes and Regulations Cited
Civil Procedure Rules, N.S. Reg.
370/2008.
Criminal Code, R.S.C. 1985, c. C‑46, s. 486 .
Youth Criminal Justice Act, S.C. 2002,
c. 1, s. 110 .
Treaties and Other International Instruments
Convention on the Rights of the Child, Can.
T.S. 1992 No. 3.
Authors Cited
“Cyberbullying: A Growing Problem”, Science Daily, February 22,
2010 (online: www.sciencedaily.com/releases/2010/02/100222104939.htm).
Eltis, Karen. “The Judicial System in the Digital Age: Revisiting
the Relationship between Privacy and Accessibility in the Cyber Context”
(2011), 56 McGill L.J. 289.
Jones, Lisa M., David Finkelhor and Jessica Beckwith.
“Protecting victims’ identities in press coverage of child victimization”
(2010), 11 Journalism 347.
Lucock, Carole, and Michael Yeo. “Naming
Names: The Pseudonym in the Name of the Law” (2006), 3 U. Ottawa L. &
Tech. J. 53.
Nova Scotia. Task Force on Bullying and Cyberbullying. Respectful
and Responsible Relationships: There’s No App for That: The Report of the
Nova Scotia Task Force on Bullying and Cyberbullying. Nova Scotia: The
Task Force, 2012.
UNICEF Innocenti Research Centre. Child Safety Online: Global
challenges and strategies. Florence, Italy: UNICEF, 2011.
Winn, Peter A. “Online Court Records: Balancing Judicial
Accountability and Privacy in an Age of Electronic Information” (2004), 79 Wash.
L. Rev. 307.
APPEAL
from a judgment of the Nova Scotia Court of Appeal (MacDonald C.J.N.S. and
Saunders and Oland JJ.A.), 2011 NSCA 26, 301 N.S.R. (2d) 34, 953 A.P.R. 34, 228
C.R.R. (2d) 181, 97 C.P.C. (6th) 54, 80 C.C.L.T. (3d) 180, [2011] N.S.J. No. 113
(QL), 2011 CarswellNS 135, affirming a decision of LeBlanc J., 2010 NSSC 215,
293 N.S.R. (2d) 222, 928 A.P.R. 222, 97 C.P.C. (6th) 24, [2010] N.S.J. No. 360
(QL), 2010 CarswellNS 397. Appeal allowed in part.
Michelle C. Awad, Q.C., and Jane
O’Neill, for
the appellant.
Daniel W.
Burnett and Paul
Brackstone, for the amicus curiae.
Written
submissions only by Brian F. P. Murphy and Wanda M. Severns, for the intervener
BullyingCanada Inc.
Marko Vesely and M. Toby Kruger, for the intervener the British
Columbia Civil Liberties Association.
Mahmud Jamal, Jason MacLean, Carly Fidler and Steven Golick, for the intervener Kids Help Phone.
Iris Fischer and Dustin Kenall, for the intervener the Canadian Civil Liberties Association.
Joseph E.
Magnet and Patricia Kosseim, for the intervener the Privacy
Commissioner of Canada.
Ryder Gilliland and Adam Lazier, for the interveners Newspapers
Canada, Ad IDEM/Canadian Media Lawyers Association, the Canadian Association of
Journalists, the Professional Writers Association of Canada and the Book and
Periodical Council.
Tamir Israel, for the intervener the Samuelson‑Glushko
Canadian Internet Policy and Public Interest Clinic.
Jeffrey S.
Leon, Ranjan K.
Agarwal and Daniel Holden, for the intervener the Canadian Unicef
Committee.
Written
submissions only by William S. Challis and Stephen McCammon, for the intervener the Information
and Privacy Commissioner of Ontario.
Written
submissions only by Jonathan M. Rosenthal, for the intervener Beyond
Borders.
No one
appeared for the respondents.
The judgment
of the Court was delivered by
[1]
Abella
J. — On March 4, 2010, a 15-year-old girl, A.B., found out
that someone had posted a Facebook profile using her picture, a slightly
modified version of her name, and other particulars identifying her.
Accompanying the picture was some unflattering commentary about the girl’s
appearance along with sexually explicit references. The page was removed by
the internet provider later that month.
[2]
Once notified of the
situation, Facebook’s counsel in Palo Alto, California provided the IP address
associated with the account, which was said to be located in Dartmouth, Nova
Scotia. The girl’s counsel determined that it was an “Eastlink address” in
Dartmouth, Nova Scotia. Further inquiry confirmed that the respondent Bragg
Communications owns Eastlink, a provider of Internet and entertainment services
in Atlantic Canada.
[3]
Eastlink consented to
giving more specific information about the address if it had authorization from
a court to do so. As a result, A.B., through her father as guardian, brought a
preliminary application under Nova Scotia’s Civil Procedure Rules, N.S.
Reg. 370/2008, for an order requiring Eastlink to disclose the identity
of the person(s) who used the IP address to publish the profile to assist her
in identifying potential defendants for an action in defamation. She stated in
her Notice of Application that she had “suffered harm and seeks to minimize the
chance of further harm” (A.R., at p. 98). As part of her application, she
asked the court for permission to seek the identity of the creator of the fake
profile anonymously and for a publication ban on the content of the fake
Facebook profile. She did not ask that the hearing be held in camera.
[4]
Eastlink did not oppose
her motion. The Halifax Herald and Global Television became aware of the
girl’s application when notice of the request for a publication ban appeared as
an automatic advisory on the Nova Scotia publication ban media advisory
website. They advised the court that they opposed both of the girl’s requests:
the right to proceed anonymously and a publication ban.
[5]
The court granted the
order requiring Eastlink to disclose the information about the publisher of the
fake Facebook profile on the basis that a prima facie case of defamation
had been established and there were no other means of identifying the person
who published the defamation. But it denied the request for anonymity and the
publication ban because there was insufficient evidence of specific harm to the
girl.
[6]
The judge stayed that
part of his order requiring Eastlink to disclose the publisher’s identity until
either a successful appeal allowed the girl to proceed anonymously, or until
she filed a draft order which used her own and her father’s real names.
[7]
The decision was upheld
by the Court of Appeal primarily on the ground that the girl had not discharged
the onus of showing that there was real and substantial harm to her which
justified restricting access to the media.
[8]
Both courts ordered
costs against the girl in favour of the two media outlets.
[9]
In my view, both courts
erred in failing to consider the objectively discernable harm to A.B. I agree
with her that she should be entitled to proceed anonymously, but once her
identity has been protected, I see no reason for a further publication ban
preventing the publication of the non-identifying content of the fake Facebook
profile.
Analysis
[10]
A.B.’s appeal to this
Court is based on what she says is the failure to properly balance the
competitive risks in this case: the harm inherent in revealing her identity
versus the risk of harm to the open court principle in allowing her to proceed
anonymously and under a publication ban. Unless her privacy is protected, she
argued, young victims of sexualized cyberbullying like her will refuse to
proceed with their protective claims and will, as a result, be denied access to
justice.
[11]
The open court
principle requires that court proceedings presumptively be open and accessible
to the public and to the media. This principle has been described as a
“hallmark of a democratic society” (Vancouver Sun (Re), [2004] 2 S.C.R.
332, at para. 23) and is inextricably tied to freedom of expression. A.B.
requested two restrictions on the open court principle: the right to proceed
anonymously and a publication ban on the content of the fake Facebook profile.
The inquiry is into whether each of these measures is necessary to protect an
important legal interest and impairs free expression as little as possible. If
alternative measures can just as effectively protect the interests engaged, the
restriction is unjustified. If no such alternatives exist, the inquiry turns
to whether the proper balance was struck between the open court principle and
the privacy rights of the girl: Dagenais v. Canadian Broadcasting Corp.,
[1994] 3 S.C.R. 835; R. v. Mentuck, [2001] 3 S.C.R. 442.
[12]
The Halifax Herald and
Global Television did not appear in the proceedings before this Court. Their
“position” was, however, ably advanced by an amicus curiae. In his
view, like the Court of Appeal, the mere fact of the girl’s age did not, in the
absence of evidence of specific harm to her, trump the open court principle and
freedom of the press.
[13]
Since Edmonton
Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, the critical
importance of the open court principle and a free press has been tenaciously
embedded in the jurisprudence and need not be further revisited here. What
does need some exploration, however, are the interests said to justify restricting
such access in this case: privacy and the protection of children from
cyberbullying. These interests must be shown to be sufficiently compelling to
warrant restrictions on freedom of the press and open courts. As Dickson J.
noted in Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R.
175, there are cases in which the protection of social values must prevail over
openness (pp. 186-87).
[14]
The girl’s privacy
interests in this case are tied both to her age and to the nature of the
victimization she seeks protection from. It is not merely a question of her
privacy, but of her privacy from the relentlessly intrusive humiliation of
sexualized online bullying: Carole Lucock and Michael Yeo, “Naming Names: The Pseudonym in the Name of
the Law” (2006), 3 U. Ottawa L. & Tech. J. 53, at pp. 72-73; Karen Eltis, “The Judicial
System in the Digital Age: Revisiting the Relationship between Privacy and
Accessibility in the Cyber Context” (2011), 56 McGill L.J. 289, at p.
302.
[15]
The amicus curiae
pointed to the absence of evidence of harm from the girl about her own
emotional vulnerability. But, while evidence of a direct, harmful consequence
to an individual applicant is relevant, courts may also conclude that there is
objectively discernable harm.
[16]
This Court found
objective harm, for example, in upholding the constitutionality of Quebec’s Rules
of Practice that limited the media’s ability to film, take photographs, and
conduct interviews in relation to legal proceedings (in Canadian
Broadcasting Corp. v. Canada (Attorney General), [2011] 1 S.C.R. 19), and
in prohibiting the media from broadcasting a video exhibit (in Canadian
Broadcasting Corp. v. The Queen, [2011] 1 S.C.R. 65). In the former,
Deschamps J. held (at para. 56) that the Dagenais/Mentuck test requires
neither more nor less than the one from R. v. Oakes, [1986] 1
S.C.R. 103. In other words, absent scientific or empirical evidence of the
necessity of restricting access, the court can find harm by applying reason and
logic: RJR-MacDonald Inc. v. Canada (Attorney
General), [1995] 3 S.C.R. 199, at para. 72; Thomson
Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877, at para.
91.
[17]
Recognition of the inherent
vulnerability of children has consistent and deep roots in Canadian law. This
results in protection for young people’s privacy under the Criminal Code,
R.S.C. 1985, c. C-46 (s. 486 ), the Youth Criminal Justice Act, S.C.
2002, c. 1 (s. 110 ), and child welfare legislation, not to mention
international protections such as the Convention on the Rights of the Child,
Can. T.S. 1992 No. 3, all based on age, not the sensitivity of the particular
child. As a result, in an application involving sexualized cyberbullying,
there is no need for a particular child to demonstrate that she personally
conforms to this legal paradigm. The law attributes the heightened
vulnerability based on chronology, not temperament: See R. v. D.B.,
[2008] 2 S.C.R. 3, at paras. 41, 61 and 84-87; R. v. Sharpe, [2001] 1
S.C.R. 45, at paras. 170-74.
[18]
This led Cohen J. in Toronto
Star Newspaper Ltd. v. Ontario, 2012 ONCJ 27 (CanLII), to explain the
importance of privacy in the specific context of young persons who are
participants in the justice system:
The concern to avoid labeling and
stigmatization is essential to an understanding of why the protection of
privacy is such an important value in the Act. However it is not the
only explanation. The value of the privacy of young persons under the Act
has deeper roots than exclusively pragmatic considerations would suggest. We
must also look to the Charter, because the protection of privacy of young
persons has undoubted constitutional significance.
Privacy is recognized in Canadian
constitutional jurisprudence as implicating liberty and security interests. In Dyment,
the court stated that privacy is worthy of constitutional protection because it
is “grounded in man’s physical and moral autonomy,” is “essential for the
well-being of the individual,” and is “at the heart of liberty in a modern
state” (para. 17). These considerations apply equally if not more
strongly in the case of young persons. Furthermore, the constitutional
protection of privacy embraces the privacy of young persons, not only as an
aspect of their rights under section 7 and 8 of the Charter, but by virtue of
the presumption of their diminished moral culpability, which has been found to
be a principle of fundamental justice under the Charter.
. . .
. . .
the protection of the privacy of young persons fosters respect for dignity,
personal integrity and autonomy of the young person.
[Emphasis added; paras. 40-41 and 44.]
[19]
And in R. v. L. (D.O.), [1993] 4 S.C.R.
419, L’Heureux-Dubé J. upheld the constitutionality of the Criminal
Code provisions that allowed for the admission of videotape evidence from
child complainants in sexual assault cases, based on the need to reduce the
stress and trauma suffered by child complainants in the criminal justice
system: pp. 445-46; see also Doe v. Church of
Jesus Christ of Latter-Day Saints in Canada, 2003 ABQB 794, 341 A.R. 395, at para. 9.
[20]
It is logical to
infer that children may suffer harm through cyberbullying. Such a conclusion
is consistent with the psychological toxicity of the phenomenon described in
the Report of the Nova Scotia Task Force on Bullying and Cyberbullying, chaired
by Prof. A. Wayne MacKay, the first provincial task force focussed on online
bullying: (Respectful and Responsible Relationships: There’s No App
for That: The Report of the Nova Scotia Task Force on Bullying and
Cyberbullying (2012)). The Task Force was created as a result of “[a]
tragic series of youth suicides” (p. 4).
[21]
The Report defined
bullying as
.
. . behaviour that is intended to cause, or should be known to cause, fear,
intimidation, humiliation, distress or other forms of harm to another person’s
body, feelings, self-esteem, reputation or property. Bullying can be direct or
indirect, and can take place by written, verbal, physical or electronic means,
or any other form of expression. [pp. 42-43]
Its
harmful consequences were described as “extensive”, including loss of
self-esteem, anxiety, fear and school drop-outs (p. 4). Moreover, victims of
bullying were almost twice as likely to report that they attempted suicide
compared to young people who had not been bullied (p. 86): See also R. v.
R.(W.), 2010 ONCJ 526 (CanLII), at paras. 11 and 16, and “Cyberbullying: A
Growing Problem”, Science Daily (February 22, 2010, online).
[22]
The Report also noted
that cyberbullying can be particularly harmful because the content can be
spread widely, quickly — and anonymously:
. . . The
immediacy and broad reach of modern electronic technology has made bullying
easier, faster, more prevalent, and crueler than ever before. . . .
. . . cyberbullying follows
you home and into your bedroom; you can never feel safe, it is “non-stop
bullying”. . . . cyberbullying is particularly insidious because it invades the
home where children normally feel safe, and it is constant and inescapable
because victims can be reached at all times and in all places. . . .
The anonymity available to
cyberbullies complicates the picture further as it removes the traditional
requirement for a power imbalance between the bully and victim, and makes it
difficult to prove the identity of the perpetrator. Anonymity allows people
who might not otherwise engage in bullying behaviour the opportunity to do so
with less chance of repercussion. . . .
. . . The cyber-world
provides bullies with a vast unsupervised public playground . . . . [pp. 11-12]
[23]
In addition to the
psychological harm of cyberbullying, we must consider the resulting inevitable
harm to children — and the administration of justice — if they decline to take
steps to protect themselves because of the risk of further harm from public
disclosure.
[24]
Professor MacKay’s
Report is consistent with the inference that, absent a grant of anonymity, a
bullied child may not pursue responsive legal action. He notes that half of
all bullying goes unreported, largely out of fear that reporting will not be
met with solutions or understanding sufficient to overcome the fear of
retaliation: p. 10. One of his recommendations, as a result,
was that mechanisms be developed to report cyberbullying anonymously (p.
66; Appendix E; see also Peter A. Winn, “Online Court Records: Balancing
Judicial Accountability and Privacy in an Age of Electronic Information”
(2004), 79 Wash. L. Rev. 307, at p. 328).
[25]
In the context of
sexual assault, this Court has already recognized that protecting a victim’s
privacy encourages reporting: Canadian Newspapers Co. v. Canada (Attorney
General), [1988] 2 S.C.R. 122. It does not take much of an analytical
leap to conclude that the likelihood of a child protecting himself or herself
from bullying will be greatly enhanced if the protection can be sought
anonymously. As the Kids Help Phone factum constructively notes (at para. 16),
protecting children’s anonymity could help ensure that they will seek
therapeutic assistance and other remedies, including legal remedies where
appropriate. In particular, “[w]hile media publicity is likely to have a
negative effect on all victims, there is evidence to be particularly concerned
about child victims. . . . Child victims need to be able to trust that their
privacy will be protected as much as possible by those whom they have turned to
for help”: Lisa M. Jones, David Finkelhor and Jessica Beckwith, “Protecting
victims’ identities in press coverage of child victimization” (2010), 11 Journalism
347, at pp. 349-50.
[26]
Studies have confirmed
that allowing the names of child victims and other identifying information to
appear in the media can exacerbate trauma, complicate recovery, discourage
future disclosures, and inhibit cooperation with authorities. (See, e.g., UNICEF Innocenti Research Centre, Child Safety Online: Global
challenges and strategies (2011), at pp. 15-16; and R. v. D.H., 2002 BCPC 464 (CanLII), at
para. 8).
[27]
If we value the right
of children to protect themselves from bullying, cyber or otherwise, if common
sense and the evidence persuade us that young victims of sexualized bullying
are particularly vulnerable to the harms of revictimization upon publication,
and if we accept that the right to protection will disappear for most children
without the further protection of anonymity, we are compellingly drawn in this
case to allowing A.B.’s anonymous legal pursuit of the identity of her
cyberbully.
[28]
The answer to the other
side of the balancing inquiry — what are the countervailing harms to the open
courts principle and freedom of the press — has already been decided by this
Court in Canadian Newspapers. In that case, the constitutionality of
the provision in the Criminal Code prohibiting disclosure of
the identity of sexual assault complainants was challenged on the basis that
its mandatory nature unduly restricted freedom of the press. In upholding the
constitutionality of the provision, Lamer J. observed that:
While freedom of
the press is nonetheless an important value in our democratic society which
should not be hampered lightly, it must be recognized that the limits imposed
by [prohibiting identity disclosure] on the media’s rights are minimal.
. . . Nothing prevents the media from being present at the hearing and
reporting the facts of the case and the conduct of the trial. Only information
likely to reveal the complainant’s identity is concealed from the public.
[Emphasis added; p. 133.]
In other
words, the harm has been found to be “minimal”. This perspective of the
relative insignificance of knowing a party’s identity was confirmed by Binnie
J. in F.N. where he referred to identity in the context of the Young
Offenders legislation as being merely a “sliver of information”: F.N.
(Re), [2000] 1 S.C.R. 880, at para. 12.
[29]
The acknowledgment of
the relative unimportance of the identity of a sexual assault victim is a
complete answer to the argument that the non-disclosure of the identity of a young
victim of online sexualized bullying is harmful to the exercise of press
freedom or the open courts principle. Canadian Newspapers clearly
establishes that the benefits of protecting such victims through anonymity
outweigh the risk to the open court principle.
[30]
On the other hand, as
in Canadian Newspapers, once A.B.’s identity is protected through her
right to proceed anonymously, there seems to me to be little justification for
a publication ban on the non-identifying content of the fake Facebook profile.
If the non-identifying information is made public, there is no harmful impact
since the information cannot be connected to A.B. The public’s right to open
courts and press freedom therefore prevail with respect to the non-identifying
Facebook content.
[31]
I would allow the
appeal in part to permit A.B. to proceed anonymously in her application for an
order requiring Eastlink to disclose the identity of the relevant IP user(s).
I would, however, not impose a publication ban on that part of the fake Facebook
profile that contains no identifying information. I would set aside the costs
orders against A.B. in the prior proceedings but would not make a costs order
in this Court.
Appeal
allowed in part.
Solicitors
for the appellant: McInnes Cooper, Halifax.
Solicitors
appointed by the Court as amicus curiae: Owen Bird Law Corporation,
Vancouver.
Solicitors
for the intervener BullyingCanada Inc.: Murphy Group, Moncton.
Solicitors
for the intervener the British Columbia Civil Liberties
Association: Lawson Lundell, Vancouver.
Solicitors
for the intervener Kids Help Phone: Osler, Hoskin & Harcourt,
Toronto.
Solicitors
for the intervener the Canadian Civil Liberties Association: Blake,
Cassels & Graydon, Toronto.
Solicitors
for the intervener the Privacy Commissioner of Canada: Office of the
Privacy Commissioner of Canada, Ottawa; University of Ottawa, Ottawa.
Solicitors
for the intervener Newspapers Canada, Ad IDEM/Canadian Media Lawyers
Association, the Canadian Association of Journalists, the Professional Writers
Association of Canada and the Book and Periodical Council: Blake,
Cassels & Graydon, Toronto.
Solicitor
for the intervener the Samuelson‑Glushko Canadian Internet Policy and
Public Interest Clinic: University of Ottawa, Ottawa.
Solicitors
for the intervener the Canadian Unicef Committee: Bennett Jones,
Toronto.
Solicitor
for the intervener the Information and Privacy Commissioner of
Ontario: Information and Privacy Commissioner of Ontario, Toronto.
Solicitor for the
intervener Beyond Borders: Jonathan M. Rosenthal, Toronto.