Date: 20000811
Docket: T-398-00
OTTAWA, ONTARIO, THIS 11th DAY OF AUGUST 2000
PRESENT: THE HONOURABLE MADAME JUSTICE DAWSON
BETWEEN:
BARRY McCABE
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
DAWSON, J.
[1] The respondent moves, seeking short leave, for an order setting aside or varying the order of Rouleau, J. granted ex parte. By that order the whole of the certified materials transmitted from the National Parole Board to the Registry, and portions of the applicant"s record, were ordered to be treated as confidential pursuant to Rule 151(1) of the Federal Court Rules, 1998 ("Rules").
[2] It is to be noted that the order expressly provided that it apply "unless an order [to] the contrary is obtained by any interested party". The order was granted ex parte to preserve the confidentiality of the materials, in the express contemplation that further applications could well be made by interested parties.
[3] The applicant consents to the granting of short leave but opposes the respondent"s motion. In the alternative, the applicant asks that the order be varied so that the transcript of proceedings before the National Parole Board, a psychiatric assessment and a number of psychological reports remain confidential. This material is all presently within the scope of the order.
[4] The materials in question were provided under cover of three separate letters from the National Parole Board and have been in the possession of the Registry since on or about April 20, 27 and 28, 2000. The order was sought by notice of motion filed July 7, 2000, and was granted on July 10, 2000.
[5] Prior to the delivery of the materials to the Registry, certain information was deleted from the materials by the National Parole Board pursuant to the provisions of subsection 37(1) of the Canada Evidence Act. The certificate filed with the Court pursuant to that subsection states that the National Parole Board objects to the production of material which would disclose, or identify, or tend to disclose or identify, victims and witnesses. The objection was made on the basis of public interest. That public interest was particularized in the certificate to be the concern that the disclosure of such material would jeopardise the safety and security of victims and witnesses; that future witnesses and other sources of information would be discouraged from coming forward if confidentiality could not be guaranteed; and that the efficacy of the legislation which offers protection to witnesses and victims (section 141 of the Corrections and Conditional Release Act) would be undermined if the National Parole Board was required to produce the material.
[6] This application is made against the backdrop of the general principle that judicial proceedings in this country are open to the public. That principle has been extended to documents filed with the Court. The circumstances where that principle of openness is departed from are narrowly circumscribed.
[7] In Canada (Minister of Citizenship and Immigration) v. Fazalbhoy (T-2589-97, January 13, 1999 (F.C.T.D.)) my colleague Gibson, J. stated:
[11] To justify a derogation from the principle of open and accessible court proceedings, and I am satisfied that that principle extends to open and accessible court records, Rule 151(2) requires that the Court must be satisfied that the material sought to be protected from access should be treated as confidential. The extract from Pacific Press (supra), makes it clear that the onus on an applicant such as the respondent here to so satisfy the Court is a heavy one.
[8] The justifiable desire to keep one"s affairs private is not, as a matter of law, a sufficient ground on which to seek a confidentiality order. In order to obtain relief under Rule 151, the Court must be satisfied that both a subjective and an objective test are met. See: AB Hassle v. Canada (Minister of National Health and Welfare) (A-289-98, A-315-98, A-316-98, May 11, 1999 (F.C.A.)) affirming (1998) 81 C.P.R. (3d) 121. Subjectively, the party seeking relief must establish that it believes its interest would be harmed by disclosure. Objectively, the party seeking relief must prove, on a balance of probabilities, that the information is in fact confidential.
[9] In the present case, I gave leave for the filing of an affidavit sworn by the applicant in which he set forth his opposition to the disclosure of the material at issue. I did so because I viewed this as a motion to vary the order as specifically contemplated by the order. I note however that no affidavit was provided in support of the original motion.
[10] The applicant"s affidavit dealt only with certain psychological reports and the psychiatric assessment. The applicant"s affidavit made no mention of the transcript of proceedings before the National Parole Board or the application record. With respect to the psychiatric assessment and psychological reports, the applicant swore that disclosure would profoundly violate his privacy in that there "would be little about my childhood, my upbringing and my most intimate relationships that would not be public knowledge". He further swore that the disclosures contained in the reports were made by him for the purpose of his rehabilitation. He swore that he never intended to have those disclosures become accessible to the public. The suggestion that the material would become public was stated to be "profoundly disturbing" to the applicant who stated it "would make my reintegration back into the community more difficult" in that not only would he "have to publicly face my criminal record" but he would also "have to face a public that knows and possibly misunderstands the meaning of personal experiences unrelated to my offending".
[11] Applying the subjective and objective tests set out above, there is only evidence before the Court to satisfy the subjective aspect of the test with respect to the psychiatric assessment and the psychological reports. There is no evidence before the Court as to the applicant"s belief that his interest would be harmed by the disclosure of the other material covered by the order. There is no basis therefore to continue the confidentiality order as it applies to any material not dealt with by the applicant in his affidavit.
[12] With respect to the psychological reports and the assessment, the psychiatric assessment contains the most detailed information concerning the applicant. Indeed, it was the content of this assessment that counsel for the applicant specifically reviewed in oral argument in opposition to the respondent"s motion.
[13] However, the psychiatric assessment expressly states that:
I explained the purpose and nature of the assessment to Mr. McCabe as well as the utilization of actuarial risk assessment instruments, limited confidentiality, and the probable distribution of the report. He indicated his understanding and the assessment proceeded with his consent.
[14] On the basis of that statement, I find that the second aspect of the test, which requires proof on the balance of probabilities that the information is in fact confidential, has not been met in relation to the psychiatric assessment. Therefore, I conclude that there is no basis to continue the confidentiality order in connection with the psychiatric assessment.
[15] As for the balance of the material, consisting of the psychological reports, the applicant"s concerns, as sworn to in his affidavit, surround disclosures about his childhood, upbringing, and intimate relationships. These details are all contained in the psychiatric assessment which, as I have noted, expressly proceeded on the basis that the applicant acknowledged the probable distribution of the report. The psychological reports repeat much of the information contained in the psychiatric assessment and also contain information not contemplated by the applicant in his affidavit. Therefore, based upon the content of the psychological reports, I find that the applicant has not met the heavy onus to establish the requirements for maintaining the confidentiality of the psychological reports.
[16] I also note the delay between the filing of the confidential material with the Registry and the bringing of the applicant"s original motion. That delay casts some doubt on the extent of the applicant"s concern regarding confidentiality.
[17] The applicant argued that public policy militates in favour of maintaining the order so that inmates will be encouraged to make full disclosure to their therapists. However, here the National Parole Board declined to disclose certain information on grounds of public interest. In the present case, I am not prepared to extend public policy concerns beyond those recognized and asserted by the National Parole Board.
[18] To the extent the applicant relies upon the decision of the learned Prothonotary Mr. Morneau, in Teale v. Canada (Attorney General), [1999] F.C.J. No. 2018 (F.C.T.D.), I find that the decision is distinguishable on the ground that there, the Court initially acted to protect personal information about "innocent third parties". While a subsequent order did recognize the applicant"s right to privacy, that order is also distinguishable because there the applicant had discontinued her application for judicial review. In the present case, the application continues to be pursued by the applicant.
[19] In the result, the respondent"s motion to set aside the order will be allowed.
ORDER
[20] It is ordered that the respondent be given short leave for the bringing of this motion.
[21] It is further ordered that the order of Rouleau, J. made July 10, 2000, be set aside.
[22] It is further ordered that the costs of this motion be in the cause.
"Eleanor R. Dawson"
Judge