John Doe v. Government of Nunavut, 2022 NUCJ 1

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: John Doe v. Government of Nunavut, 2022 NUCJ 1 Date: 20220117 Docket: 18-21-186 Registry: Iqaluit Plaintiff: John Doe -and- Defendant: The Government of Nunavut __________________________________________________________________ Before: Mr. Justice Mulligan Counsel (Plaintiff): K. O’Flaherty Counsel (Defendant): W. Lu Location Heard: Iqaluit, Nunavut (Virtual Hearing) Date Heard: January 17, 2022 Matters: Application to anonymize name pursuant to Practice Directive #1 of the Nunavut Court of Justice. REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Anonymized Judgment Disclaimer : This judgment has been anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties. Letters have been assigned at random. I. INTRODUCTION [ 1 ] This is the return of the plaintiff’s ex parte application to file and serve a Statement of Claim against the Government of Nunavut using an anonymized name.

This procedure at commencement of an action is permitted pursuant to the Nunavut Court of Justice Practice Directive No. 1. [ 2 ] The defendant Government of Nunavut (GN) opposes the plaintiff’s request to continue further using a pseudonym on all pleadings and documents and the plaintiff’s request that all pleadings and documents be sealed. [ 3 ] This matter first came before me on Nov 9, 2021. It was clear that the media had not been notified of the plaintiff’s proposed relief. Both counsel accepted the court’s suggestion that the media be notified. The motion was adjourned and returned on Jan 17, 2022.

Counsel filed an affidavit confirming that various media, with interest in Nunavut news, had been notified. To date no intervention has been sought by any media. [ 4 ] The suggestion to both counsel was made out of an abundance of caution and based on recent guidance from the Supreme Court of Canada in a case concerning the open court principle. [ 5 ] In CBC v.

Manitoba 2021 SCC 33 Kasirer J. speaking for the majority stated at paras. 46 and 51: [46] First, it is important to recognize that applying this principle to publication bans or sealing orders requires some consideration of standing, because of the broad effects of such an order. Insofar as a publication ban or a sealing order impinges on the open court principle, such orders can, for example, affect the public’s right to freedom of expression and freedom of the press under s. 2(

b) of the Charter ( Vancouver Sun , at para. 26). Court openness is understood as a public good, not an interest that belongs to a particular individual or entity. Further, the risks to competing important interests which justify limits on court openness must also reflect public values, even if they might be aimed at protecting particular persons ( Sierra Club of Canada v. Canada (Minister of Finance) , 2002 SCC 41 , [2002] 2 S.C.R. 522 , at para. 55 . … [51] To be clear, limits on court openness, such as a publication ban, can be made without prior notice to the media.

Given the importance of the open court principle and the role of the media in informing the public about the activities of courts, it may generally be appropriate to give prior notice to the media, in addition to those persons who would be directly affected by the publication ban or sealing order, when seeking a limit on court openness (see Jane Doe v. Manitoba , 2005 MBCA 57 , 192 Man. R. (2d) 309 , at para. 24 ; M. (A.) v. Toronto Police Service , 2015 ONSC 5684 , 127 O.R. (3d) 382 (Div. Ct.) , at para. 6 ) . But whether and when this notice should be

given is ultimately a matter within the discretion of the relevant court (Dagenais, at p. 869; M. (A.), at para. 5). I agree with thesubmissions of the attorneys general of British Columbia and Ontario that the circumstances in which orders limiting court openness aremade vary and that courts have the requisite discretionary authority to ensure justice is served in each individual case. [6] In connection with this motion the following materials have been reviewed, in addition to the oral submissions of counsel: a. The Statement of Claim b. Nunavut Practice Directive 1 c.

The affidavit of the plaintiff, now sealed d. The affidavit of a lawyer for the defendant with 2 sealed exhibits e. The plaintiff’s expert report, by way of answers to questions, and the cross examination of the expert f. the prehearing written briefs of counsel II. THE OPEN COURT PRINCIPLE [7] The open court principle is a core value of our judicial system.

Both parties made reference to the leading Supreme Court ofCanada decisions tracing the development of this common law principle. [8] As the plaintiff notes in his written memorandum of argument, at para. 1, the principle has been summarized by the SupremeCourt in Vancouver Sun, Re, 2004 SCC 43 at paras. 24-25: [24] The open court principle has long been recognized as a cornerstone of the common law: Canadian Broadcasting Corp. v. NewBrunswick (Attorney General), supra, at para. 21. The right of public access to the courts is “one of principle . . . turning, not onconvenience, but on necessity”: Scott v.

Scott, [1913] A.C. 417 (H.L.), per Viscount Haldane L.C., at p. 438. “Justice is not a cloisteredvirtue”: Ambard v. Attorney-General for Trinidad and Tobago, (UK JCPC), [1936] A.C. 322 (P.C.), per Lord Atkin, at p. 335. “Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity”: J.

H.Burton, ed., Benthamiana: Or, Select Extracts from the Works of Jeremy Bentham (1843), p. 115. [25] Public access to the courts guarantees the integrity of judicial processes by demonstrating “that justice is administered in a non-arbitrary manner, according to the rule of law”: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), supra, at para. 22.Openness is necessary to maintain the independence and impartiality of courts. It is integral to public confidence in the justice systemand the public’s understanding of the administration of justice.

Moreover, openness is a principal component of the legitimacy of thejudicial process and why the parties and the public at large abide by the decisions of courts. [9] In Dagenais v. CBC, (SCC), [1994] 3 SCR 835 the Supreme Court developed a two-step test to determine when apublication ban is appropriate. The test is now often referred to as the Dagenais/Mentuck test. As the Court stated at para. 77: [77] A publication ban should be only ordered when: (

a) Such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably availablemeasures will not prevent the risk; and (

b) The salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban.[Emphasis in original] [10] Both parties made reference to the recent Supreme Court of Canada’s decision Sherman Estate v. Donovan 2021 SCC 25.

[ 11 ] In Sherman the Court again noted the strong presumption in favour of open courts (see para 2), and stated at para. 3: “where a discretionary court order limiting the protected openness is sought…the applicant must demonstrate that as a threshold requirement, that openness presents a serious risk to a competing interest of public importance”. [ 12 ] The Court was required to decide in the Sherman Estate whether privacy can amount to a public interest in the open court jurisprudence and, if so, whether openness puts privacy at serious risk to justify the order sought. (see par. 6) [ 13 ] At para. 38 the Court recast the test as follows: [38] The test for discretionary limits on presumptive court openness has been expressed as a two-step inquiry involving the necessity and proportionality of the proposed order ( Sierra Club , at para. 53).

Upon examination, however, this test rests upon three core prerequisites that a person seeking such a limit must show. Recasting the test around these three prerequisites, without altering its essence, helps to clarify the burden on an applicant seeking an exception to the open court principle.

In order to succeed, the person asking a court to exercise discretion in a way that limits the open court presumption must establish that: (1) court openness poses a serious risk to an important public interest; (2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and, (3) as a matter of proportionality, the benefits of the order outweigh its negative effects.

Only where all three of these prerequisites have been met can a discretionary limit on openness — for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order — properly be ordered. This test applies to all discretionary limits on court openness, subject only to valid legislative enactments ( Toronto Star Newspapers Ltd. v.

Ontario , 2005 SCC 41 , [2005] 2 S.C.R. 188 , at paras. 7 and 22 ). [ 14 ] The Court also considered privacy interests and when those interests rose to the level of posing a risk to an important public interest at para. 63: [63] Specifically, in order to preserve the integrity of the open court principle, an important public interest concerned with the protection of dignity should be understood to be seriously at risk only in limited cases. Nothing here displaces the principle that covertness in court proceedings must be exceptional.

Neither the sensibilities of individuals nor the fact that openness is disadvantageous, embarrassing or distressing to certain individuals will generally on their own warrant interference with court openness ( MacIntyre , at p. 185; New Brunswick , at para. 40; Williams , at para. 30; Coltsfoot Publishing Ltd. v. Foster-Jacques , 2012 NSCA 83 , 320 N.S.R. (2d) 166 , at para. 97 ). [ 15 ] These open court principles are reflected in Nunavut Practice Directive 1 dated January 8, 2016, which allows civil proceedings to be commenced on an ex parte basis using an anonymized name.

In the Directive the court begins by setting out these guiding principles: The Nunavut Court of Justice is committed to ensuring the preservation of the open court principle. Absent exceptional circumstances, this procedure is to be used solely in civil actions involving allegations of sexual misfeasance.

III. THE STATEMENT OF CLAIM AND AFFIDAVIT [ 16 ] The plaintiff states in his claim that he was suffering from a mental illness and a disability (para. 4) and that the confinement amounted to cruel and unusual punishment (para. 20).

He further states that solitary confinement caused his mental disturbance, stress, and anxiety. [ 17 ] The plaintiff’s affidavit states at para: 4: [4] That the mental disorders I was diagnosed with in that time period include schizophrenia and psychosis, and it would hurt me intensely to have the public,…where I plan to live my life and raise a family, know that I was diagnosed with those mental disorders along with the knowing the symptoms I suffered from. [ 18 ] The plaintiff provides no medical reports or diagnosis to support his statement of diagnosis. [ 19 ] The plaintiff did retain an expert; Dr.

Jamie Livingston, PhD. Dr. Livingston provided written answers to questions posed by counsel for the plaintiff. In addition, he was cross-examined by defence counsel. [ 20 ] Dr. Livingston has a doctoral degree in criminology. He has worked extensively and studied the stigma associated with mental health and substance abuse. I accept his evidence that individuals with mental illness have an inherent vulnerability and often are stigmatized surrounding their mental illness.

This stigmatization can often affect many aspects of daily living if their health issues are made subject to wide circulation. [ 21 ] The cross-examination of Dr. Livingston made it clear that he was not a licensed medical doctor or psychologist. He has no personal knowledge of the plaintiff other than reviewing the plaintiff’s statement of claim. He had not been provided with any medical reports or opinions concerning the plaintiff. IV.

THE PLAINTIFF’S SUBMISSIONS [ 22 ] In his written submissions the plaintiff acknowledges the open court principle but notes various exceptions which he submits have led to incremental developments in the law. The plaintiff asks the court to take judicial notice of the impact of mental illness when details have been published against the wishes of an individual. [ 23 ] The plaintiff refers to the Sherman Estate test and the intersection of the plaintiff’s privacy as a serious risk to the public interest.

The plaintiff relies on the Court’s statement of principles at para 33: [33] …A court can make an exception to the open court principle, notwithstanding the strong presumption in its favour, if the interest in protecting core aspects of individuals’ personal lives that bear on their dignity is at serious risk by reason of the dissemination of sufficiently sensitive information.

The question is not whether the information is “personal” to the individual concerned, but whether, because of its highly sensitive character, its dissemination would occasion an affront to their dignity that society as a whole has a stake in protecting. [ 24 ] Perhaps acknowledging the very limited exceptions to the open court principle the plaintiff concludes his written argument at para. 45;

[45] Expanding the scope of the Practice Directive 1 in this case would represent a natural and incremental progression of the law ofpseudonyms, a law which has always been used to protect the vulnerable. V. THE DEFENDANT’S SUBMISSIONS [25] The defendant submits that the plaintiff in his argument conflates the issue of proceeding anonymously with the issue of apublication ban. It further argues that the plaintiff’s request for anonymity should fail on two bases; first, existing public knowledge andsecond, his request is contrary to well established open court principles, as recast in Sherman Estate.

A) Existing Public Knowledge [26] The defendant Government of Nunavut filed the affidavit of John Sawatsky with two exhibits sealed for the court. I have examinedboth exhibits and ordered them resealed. [27] The first exhibit is a ruling from the Nunavut Court of Justice dated December 21, 2018 and released by the court in February of2019. The plaintiff, whose name was used, was the accused with respect to several criminal charges. The ruling ordered that amicus beappointed with respect to several of the counts on an ongoing criminal matter after the accused had dismissed his lawyer. [28] The second exhibit was a news

article published by Nunatsiaq News, shortly after the ruling was made public. I pause to note thatthe paper styles itself as the paper of record for Nunavut. In the court ruling and in an extensive article, John Doe’s actual name was usedand his mental health was referenced in circumstances where a psychiatric assessment had been ordered but refused by him. [29] As the defendant notes in its written submissions at para. 37: [37] The criminal decision and news

article are available and/or readily available to the public.

B) Opposition to the Publication Ban Request [30] The defendant relies on the well-established open court principles and notes the following points: a. The plaintiff has not provided objective medical evidence either to the court or to his expert. b.

The plaintiff’s expert has no medical knowledge of the plaintiff’s medical diagnosis other than the statements in the Claim, and shouldbe given little or no weight. [31] The defendant submits that the plaintiff’s wish to avoid having the public know about his diagnosis does not rise to the level of anexception to this core principle. [32] The defendant points to the guidance of the Supreme Court of Canada in MacIntyre v. AG (Nova Scotia) (SCC),[1982] 1 SCR 175.

As Dickson J. stated at para 59: [59] As a general rule the sensitivities of the individuals involved are no basis for exclusion of the public from judicial proceedings. [33] In B.A. v. Stubbs Cumming J. applied the MacIntyre principles and stated at para 27: [27] Many parties would prefer not to be identified in a civil proceeding. The disclosure of medical and psychiatric records and otherpersonal details is common where a plaintiff seeks damages for emotional harm. Many such plaintiffs, as with AB in the case at hand

regard themselves as “victims”. But the subjective feelings of the plaintiff cannot be the test for giving an anonymity order. Such an approach would open the floodgates for preliminary motions for anonymity orders. V. CONCLUSION [ 34 ] I dismiss the plaintiff’s applications to continue anonymously and to have pleadings and documents sealed, after considering the submissions and the present state of the law. [ 35 ] The plaintiff’s name appeared in a previous criminal proceeding which resulted in a judicial ruling and media coverage.

Although that is not the end of the inquiry it is a factor that must be considered when a plaintiff seeks an exception to the open court principle. I have no hesitation in finding that the plaintiff has not met the very high burden that his case warrants an exception to the open court principle. Any plaintiffs in similar circumstances would no doubt have concerns about their privacy interests.

But that concern does not raise the issue to a public interest warranting protection. [ 36 ] Nunavut Practice Directive 1 bears repeating: The Nunavut Court of Justice is committed to ensuring the preservation of the open court principle. Absent exceptional circumstances, this procedure is to be used solely in civil allegations of sexual interference. [ 37 ] Mr. Doe faces a high burden in overcoming the open court principle in this motion. Mr. Doe alleges that the use of his real name will further stigmatize him due to his mental health concerns. He has not raised any issues of personal safety.

Although he is not required to do so he has not filed any medical reports or opinions to assist the court in evaluating his subjective beliefs. [ 38 ] I see no basis to expand the present list of narrow exceptions based on the plaintiff’s subjective concerns. I agree with Cummings J. in Stubbs that to do so would open the floodgates for many plaintiffs to request similar relief. [ 39 ] Motion dismissed. VI. COSTS [ 40 ] Neither party seeks costs. No order as to costs. Dated at the City of Iqaluit this 24th day of January, 2022 ___________________ Justice G. Mulligan Nunavut Court of Justice