Date: 199912
Docket: T-1677-99
Between:
KARLA-LEANNE TEALE
Applicant
AND
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY:
[1] This Court has before it a motion by Southam Inc. et al. for leave to intervene to have the direction this Court gave on November 3, 1999 (the Direction) reviewed.
Background
[2] On September 20, 1999, the applicant filed an application for judicial review (the review application) of a decision by officials of the penitentiary where she is currently being held. Her application to those officials for escorted temporary absence was thereby dismissed.
[3] Under rule 317(2) of the Federal Court Rules, 1998 (the Rules), in her review application, the applicant asked the tribunal in question"the penitentiary officials"to transmit to both her and the Registry of this Court a certified copy of the following material:
| The complete file of the applicant upon which the Joliette Institution warden relied to base her decision; |
| Any interview notes or any notes taken by the Joliette Institution warden, or any other person in charge, in the purpose of assessing the applicant"s application for escorted temporary absence; |
| A print-out of any existing computer information concerning the applicant not included in the material cited above. |
[4] On October 12, 1999, penitentiary officials complied with this request and transmitted a certified copy of the material to the Registry of this Court. The nearly 317 pages of material are divided up under 22 tabs (the penitentiary"s record) (for administrative purposes, the Registry of this Court numbered the pages of this record consecutively).
[5] In an affidavit submitted in support of upholding the Direction (the applicant"s affidavit), the applicant described the contents of the penitentiary"s record"which description the Court is willing to accept for the purposes of this analysis"as follows:
| 2. That the Tribunal"s record contains various material which includes nine (9) psychological/psychiatric reports, thirty (30) letters from citizens, two (2) letters from lawyers in support of my application for escorted temporary absences, nine (9) reports written by different S.C.C. workers, and a computer data base print-out that includes all kinds of information, decisions, interview notes, perceptions and apprehension of different S.C.C. workers about me; |
| 3. That the Tribunal record also includes a handwritten letter that I wrote in support of my application; |
[6] On November 3, 1999, administrative officials of this Court drew my attention to the fact that copies of the penitentiary"s record had been provided to the public (including the media) and, through a request for directions, asked me whether this matter was to be considered confidential and, if so, whether a publication ban was in order.
[7] On the same day, I gave the Direction, which reads as follows:
| Unless an order to the contrary is obtained by any interested party at his or her request, the documents received on October 12, 1999 in this file from Correctional Service Canada must be treated as confidential. It is hereby directed that any copies of the material mentioned above that have been distributed by the Registry of this Court be considered as confidential and are hereby subject to a non-publication ban. [Emphasis added.] |
[8] On November 4, 1999, the applicant filed, in the record of this Court, her affidavit in support of her review application.
[9] Note that the Direction makes no reference to either the text of the review application or the applicant"s November 4 affidavit, so both are available for the public"s information.
[10] Also note that as mentioned at the hearing, when the Direction was drafted and given, I was unaware some newspapers had already published lengthy excerpts from the penitentiary"s record. We will come back to the consequences to attach to this fact below (see paragraph 45).
[11] On November 17, 1999"14 days after the Direction was given"Southam Inc. et al. filed the motion referred to in paragraph 1.
[12] On November 18, 1999, the applicant served and filed a notice of discontinuance of her review application. On the same day, the respondent, the Attorney General of Canada, informed the Court and the other interested parties that given, inter alia, the discontinuance, she would not be taking part in the motion by Southam Inc. et al. and was leaving that to the Court"s discretion.
Analysis
[13] Before dealing with the underlying grounds for giving the Direction and before analysing the grounds for or against upholding it, a number of issues the applicant raised"preliminary issues, I would say"need settling. Under this heading, the motion for leave to intervene by Southam Inc. et al. will be decided.
Preliminary issues
[14] First, contrary to the applicant"s contention, the Court is of the opinion that it still has jurisdiction to deal with such a motion for leave to intervene, because although the applicant has discontinued her application for judicial review, the record of this Court in this matter and the material contained therein remain. Therefore, the Direction is still effective.
[15] The applicant"s discontinuance affects not jurisdiction, but whether or not the Direction should be upheld; we will deal with that issue below (see paragraphs 39 et seq.).
[16] Second, I do not believe Southam Inc. et al. can be prevented from intervening in this matter on the ground that the applicant and respondent themselves never took part in argument on the Direction.
[17] Clearly, the Direction is aimed mainly at the media. While I do not accept, as Southam Inc. et al. contended, that the Supreme Court in Dagenais v. Canadian Broadcasting Corporation, [1994] 3 S.C.R. 835, requires all courts to give notice to the media before banning publication (see Mr. Justice Lamer"s remarks on this point at pages 868-69), I do consider it entirely appropriate to give the media a say in the argument of any review of such a ban.
[18] The opening words of the Direction provide that any interested party"in other words, a person or entity other than the applicant or respondent"can seek review of the Direction.
[19] In my view, Southam Inc. et al. have a sufficient interest to be granted leave to intervene in this matter to have the Direction reviewed. To this end, applying the test this Court established in Canadian Council of Professional Engineers et al. v. Memorial University of Newfoundland (1997), 135 F.T.R. 211, at page 212, Southam Inc. et al. meet all three criteria. Inter alia, Southam Inc. et al. can validly argue that the Directive infringes the following constitutional rights they exercise on behalf of the public: the right to open and accessible court proceedings and their right to freedom of expression. Since the media"s right to freedom of expression can be deemed to include the right to open and accessible court proceedings, from here on we will refer to the right to freedom of expression.
[20] That is why I told Southam Inc. et al. (the interveners) at the hearing that they were being granted leave to intervene in this matter to have the Direction reviewed. For the purposes of rule 109(3), the interveners with respect to the Direction will govern themselves like any respondent and may be entitled, or subject, as the case may be, to costs and the right of appeal.
[21] In addition, considering that the Direction provides that an "order" to the contrary can be sought, under the circumstances the Direction should be treated for all purposes as an order within the meaning of the Federal Court Rules, 1998 (the Rules) for the sake of this review. This review sought by the interveners is in the nature not of an appeal from a prothonotary"s order but of a motion to set aside under rule 399 (paragraphs 399(1)(a ) and 399(2)(a), to be precise). Thus, the same Court that gave the Direction can now deal with this motion to set aside.
[22] The preliminary issues the interveners raised have more to do with the appropriateness of the Direction and should accordingly be considered under that heading, which will also cover whether or not the Direction should be upheld.
Appropriateness of the Direction and upholding it now
[23] The Court is not prepared to say that the Direction is illegal because it was not sought by either of the parties as required by rule 151, or that it goes beyond a prothonotary"s jurisdiction because it amounts to an injunction.
[24] The Direction refers to no rule in particular because it was not given under the terms and strict authority of a specific rule. The Court had regard to the requirements of rule 151(2)"which encapsulates the state of the case law on the interests to be weighed"and derived its authority not from a motion but from this Court"s inherent jurisdiction to control its own procedure.
[25] Furthermore, had a motion under rule 151 been brought, any prothonotary of this Court could clearly have dealt with it. I do not see why a prothonotary would not have jurisdiction when this Court"s inherent jurisdiction was exercised in keeping with the spirit of that rule.
[26] In my view, if a prothonotary can make an order of confidentiality, he also has the authority to ban publication. In the case at bar, had an order of confidentiality been made at the outset, there would have been no need to follow up with a publication ban, since the interveners would not have had access to the penitentiary"s record. The publication ban was made necessary because the material was in the interveners" possession when the Direction was given. The publication ban is thus an offshoot, an extension of an order of confidentiality. Hence it is in the nature of an order of confidentiality, not an injunction. In fact, in my view, a publication ban is similar in effect to the in camera order a prothonotary can make under rule 29(2). Under the circumstances, therefore, a prothonotary could give the Direction.
[27] In the event of non-compliance with a publication ban, a prothonotary would admittedly not ultimately have jurisdiction to hold an offender in contempt, but he could certainly act for the first part of a motion to that effect (see rule 467(1)) and leave the second part to a judge of this Court (rule 469 et seq.).
[28] The interveners also argued that when it was considering the request for directions, this Court did not have before it the necessary evidence showing that the need for confidentiality with respect to the penitentiary"s record outweighed their right to freedom of expression.
[29] I disagree with this argument in view of the circumstances of the case at bar.
[30] As mentioned at the hearing, one must understand that when the Direction was given, though aware the applicant was duly represented by counsel, the Court had to act promptly in order, inter alia, to protect any personal information about any innocent third party in the penitentiary"s record. Even a cursory review of the record shows that it contains such information about the private lives of innocent third parties (such as people who have written to the applicant describing past personal situations of a sometimes very disturbing nature and also giving their names, addresses and telephone numbers).
[31] Thus on November 3, 1999, the Court had before it material"the penitentiary"s record"containing, on its very face, personal information about fundamental aspects of people"s private lives. These aspects of private life are extremely important, as the majority of the Supreme Court very recently said in R. v. Mills , November 25, 1999, No. 26358, at pages 80 et seq.:
| This interest in being left alone by the state includes the ability to control the dissemination of confidential information. As La Forest J. stated in R. v. Duarte, [1990] 1 S.C.R. 30, at pp. 53-54: |
| . . . it has long been recognized that this freedom not to be compelled to share our confidences with others is the very hallmark of a free society. Yates J., in Millar v. Taylor (1769), 4 Burr. 2303, 98 E.R. 201, states, at p. 2379 and p. 242: |
| It is certain every man has a right to keep his own sentiments, if he pleases: he has certainly a right to judge whether he will make them public, or commit them only to the sight of his friends. |
| These privacy concerns are at their strongest where aspects of one"s individual identity are at stake, such as in the context of information "about one"s lifestyle, intimate relations or political or religious opinions": Thomson Newspapers , supra, at pp. 517-18, per La Forest J., cited with approval in Baron, supra, at pp. 444-45. |
| The significance of these privacy concerns should not be understated. Many commentators have noted that privacy is also necessarily related to many fundamental human relations. As Charles Fried states in "Privacy" (1967-68), 77 Yale L.J. 475, at pp. 477-8: |
| To respect, love, trust, feel affection for others and to regard ourselves as the objects of love, trust, and affection is at the heart of our notion of ourselves as persons among persons, and privacy is the necessary atmosphere for these attitudes and actions, as oxygen is for combustion. |
| See also David Feldman, "Privacy-related Rights: Their Social Value", in Peter Birks, ed., Privacy and Loyalty , (1997), 15, at pp. 26-27, and James Rachel, "Why Privacy is Important" (1975), 4 Philosophy & Public Affairs 323. This Court recognized these fundamental aspects of privacy in R. v. Plant, [1993] 3 S.C.R. 281, where Sopinka J., for the majority, stated, at p. 293: |
In fostering the underlying values of dignity, integrity and autonomy, it is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual. [Emphasis added.]
[32] On November 3, 1999, the Court was faced with the contents of the penitentiary"s record. That was the evidence the Court had before it. Therefore, the Court was not acting without evidence and could not waste precious time waiting or looking for more. The Court could certainly not wait for third parties to bring a motion under rule 151. The orderly administration of justice demanded otherwise.
[33] Knowing the penitentiary"s record had not been available to the media for long"as I said before, the court was unaware at the time that lengthy excerpts had in fact already been published"the Court had to act promptly for the sake of privacy and thus could not concern itself with giving notice to the media, given the problems and time such an exercise would have involved (see Dagenais , supra, at the bottom of p. 868).
[34] Under the circumstances, which called for prompt action, the Court had no choice but to give the Direction; there was no provision for a severing or pruning exercise (like there is under section 25 of the Access to Information Act, R.S.C. 1985, c. A-1, as amended).
[35] Last, the Court was of the opinion that the Direction"s salutary effects on privacy outweighed its deleterious effects on the media"s free expression.
[36] Thus the Direction meets the substance of the Oakes test according to the Supreme Court"s analysis in Dagenais , supra, p. 878, provided the Direction is subject to Charter review; see Dagenais, supra, p. 941.
[37] In short, on the facts, the Court was faced with a conflict between privacy protection and the media"s freedom of expression, and was of the opinion it should give priority"temporarily, at least"to protecting privacy.
[38] I say "temporarily" because one must also remember that the Direction in limine invited the media to apply for review if they felt adversely affected. Thus the Direction could have been reviewed quickly, on an urgent basis even. The interveners could then have raised any argument of law or fact to persuade this Court to further limit the Direction. Nevertheless, the interveners waited more than 14 days, until November 17, 1999, to file the application at issue, which was initially to be heard on November 22, 1999.
[39] However, as I said before (see paragraph 12), the applicant discontinued her application on November 18, 1999. Since the public is now assured there will be no proceedings in this Court regarding whether or not the applicant is entitled to escorted temporary absence, the public"s right to information must give way to the applicant"s right to privacy, which she has always retained, even in detention.
[40] In her affidavit, the applicant expressed the following view of the contents of the penitentiary"s record and the fact that she never waived confidentiality in relation thereto:
| 4. That most of the 22 documents (which includes the 30 letters from citizens) make reference to some of the most private areas of my life which I intend to keep, if not confidential, as private as possible; |
| 5. That although I brought a Motion for Judicial Review to the Federal Court against the Joliette institution warden decision, I never intended to make my correctional record accessible to the public and never consented that it be disclosed to same; |
| . . . |
| 8. That exhibit 22 contains mostly private aspects of my life in prison as interpreted by same S.C.C. workers; |
| . . . |
| 10. That the Tribunal record contains various information about other persons in which I have a lot of sympathy and respect (friends, family, professionals and other inmates); |
[41] The Court is willing to accept the applicant"s view such that her privacy concerns now outweigh other interests.
[42] The interveners argued vehemently that the applicant should be deemed to have waived all privacy protection by asking the penitentiary under rule 318 for the material on which the decision she challenged was based without at the same time obtaining an order under rule 151 to protect all aspects of her privacy.
[43] In my view, under the circumstances, such a finding would be too drastic.
[44] In asking the penitentiary for its record, the applicant could admittedly have exercised caution by seeking an order under rule 151. It has to be acknowledged in her defence that she did not put the material together; the penitentiary prepared and transmitted its record to the Registry of this Court. True, the applicant could then have brought a motion under rule 151 as early as October 12, 1999. She did not do so, but paid the price: before the Direction was given, the interveners and other media published and broadcast lengthy excerpts from the penitentiary"s record. In my view, the public right to information underlying the interveners" freedom of expression was thereby amply satisfied. As for the rest of the information, subject to the paragraphs below, the applicant"s privacy must now take precedence.
[45] The Direction should accordingly be upheld except with respect to any information already published when the Direction was given. In spite of the applicant"s objection in this regard, this conclusion is in my view inescapable because when the Direction was given, any already-published information was necessarily in the public domain. Since the Court was unaware of this fact when it gave the Direction, the Direction should thus be limited.
[46] In addition, if the Court properly understood his remarks, counsel for the applicant said at the hearing that he feared if the Direction were thus limited, the interveners and other media might seek to publish from the penitentiary"s record"since some of them have a complete copy of it"information still protected by the Direction by arguing that this information, directly or indirectly, is information that was published on November 3, 1999.
[47] I am unable to share the applicant"s fear. We must of course take the media"s good faith and responsibility for granted. Should the situation the applicant described unfortunately materialize, the remedy of contempt of court would then be available to the applicant.
[48] Furthermore, it is quite possible the already-published information fully or partially includes the material at tabs 1 and 2 of the penitentiary"s record. If so, the Direction does not apply to this information. If not, however, I am of the view that in light of the remarks made during the hearing, the Direction should not apply to this information.
[49] Moreover, despite the fact that this point was discussed during the hearing, I have decided on reflection not to grant the applicant a stay of the order accompanying these reasons under rule 398(1)(a). It is clear in my view that with respect to the information now excluded from the protection of the Direction, the applicant does not meet any of the requirements of the applicable test, namely the three criteria set out in Manitoba (A.G.) v. Metropolitan Stores (MTS) Ltd. et al., [1987] 1 S.C.R. 110.
[50] Last, despite the applicant"s request for costs in connection with the interveners" motion, I am of the opinion no costs should be awarded.
Prothonotary
MONTRÉAL, QUEBEC
December , 1999
Certified true translation
Peter Douglas