privacy of minor is more important than open court
A.B. v. Bragg Communications Inc., [2012] 2 SCR 567, 2012 SCC 46
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
...
[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 revictim
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 nonidentifying 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