R.R. Applicant And: Her M AJESTY THE QUEEN IN RIGHT OF NEWFOUNDLAND v. LABRADOR, 2022 NLSC 54

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R.R. v. Newfoundland and Labrador , 2022 NLSC 54 Date : March 29, 2022 Docket : 202101G4059 IN THE MATTER OF an application by R.R. for an order banning the publication of his name Between: R.R.

Applicant And: Her M AJESTY THE QUEEN IN RIGHT OF NEWFOUNDLAND AND LABRADOR Respondent And: The Canadian Broadcastng Corporation AND ctv news, a division of bell Media IntervenorS/ RESPONDENTS Restriction on Publication: By court orders dated 7 July 2021, 1 November 2021 and 19 November 2021, information that may identify the person described in this judgment as the Applicant or the Accused shall not be published in any documents, broadcasted, or transmitted in any way. Before: Justice James P. Adams Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: March 25, 2022

Summary:

The Applicant has been charged with a number of sexual offences. He applied for a publication ban on any information which couldreveal his identity which was denied. He applied to the Supreme Court of Canada for leave to appeal that decision. He applied to thiscourt for a stay of this court’s decision pending the completion of the process in the Supreme Court of Canada. Held: The stay is granted in respect of the publication ban. The sealing order on the file material is vacated. Appearances: Jerome P. Kennedy, Q.C. Appearing on behalf of the Applicant Scott Hutchison Rosellen Sullivan Brandon Chung Lloyd M.

Strickland Appearing on behalf of the Respondent Christine Lonsdale Appearing on behalf of the Interveners Pippa Leslie Authorities Cited: CASES CONSIDERED: R.J.R. - MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311; Rees v.Royal Canadian Mounted Police, 2005 NLCA 4; Sherman Estate v. Donovan, 2021 SCC 25; Dagenais v. Canadian Broadcasting Corp., (SCC), [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76 STATUTES CONSIDERED: Supreme Court Act, R.S.C. 1985, c. S-26 DECISION ON APPLICATION FOR A STAY Adams, J.: INTRODUCTION [1] The Applicant is charged with a number of sexual offences.

He applied for a publication ban on his name or any informationwhich could lead to the disclosure of his identity. The application was heard on 24 and 25 February 2022. I reserved my decision. On23 March 2022 I provided a written decision denying the application. [2] On 23 March 2022 the Applicant filed an application to the Supreme Court of Canada for leave to appeal my decision pursuantto section 40(1) of the Supreme Court Act, R.S.C. 1985, c. S-26. On 23 March 2022 the Applicant also filed an application to stay mydecision of 23 March 2022.

Due to the urgency of the matter, I agreed to hear the application on short notice on 25 March 2022. [3] Following oral argument, I granted the application for a stay with reasons to follow. These are my reasons. THE TEST [4] The test for a stay of an order of the court (or in this case, my decision, since no formal order had been filed at that time) is setout in the Supreme Court of Canada in R.J.R. - MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R.

311 . The test has been applied on many occasions. The most authoritative treatment of it in this province is in Rees v. Royal Canadian Mounted Police , 2005 NLCA 4 . At paragraph 41, Wells, C.J.N.L. quoted the

summary of the test provided by Sopinka and Cory, JJ at pages 347 to 349 of the R.J.R. – MacDonald decision: 41 … As indicated in Metropolitan Stores , the three-part American Cyanamid test should be applied to applications for interlocutory injunctions and as well for stays in both private law and Charter cases. At the first stage , an applicant for interlocutory relief in a Charter case must demonstrate a serious question to be tried. Whether the test has been satisfied should be determined by a motions judge on the basis of common sense and an extremely limited review of the case on the merits.

The fact that an appellate court has granted leave in the main action is, of course, a relevant and weighty consideration, as is any judgment on the merits which has been rendered, although neither is necessarily conclusive of the matter. A motions court should only go beyond a preliminary investigation of the merits when the result of the interlocutory motion will in effect amount to a final determination of the action, or when the constitutionality of a challenged statute can be determined as a pure question of law . Instances of this sort will be exceedingly rare.

Unless the case on the merits is frivolous or vexatious, or the constitutionality of the statute is a pure question of law, a judge on a motion for relief must, as a general rule, consider the second and third stages of the Metropolitan Stores test. At the second stage the applicant must convince the court that it will suffer irreparable harm if the relief is not granted. 'Irreparable' refers to the nature of the harm rather than its magnitude.

In Charter cases, even quantifiable financial loss relied upon by an applicant may be considered irreparable harm so long as it is unclear that such loss could be recovered at the time of a decision on the merits. The third branch of the test, requiring an assessment of the balance of inconvenience , will often determine the result in applications involving Charter rights. In addition to the damage each party alleges it will suffer, the interest of the public must be taken into account. ... We would add to this brief

summary that, as a general rule, the same principles would apply when a government authority is the applicant in a motion for interlocutory relief. However, the issue of public interest, as an aspect of irreparable harm to the interests of the government, will be considered in the second stage. It will again be considered in the third stage when harm to the applicant is balanced with harm to the respondent including any harm to the public interest established by the latter. [underlining in original] [ 5 ] This is the test I will apply.

Issue Should a stay of my decision be granted? [ 6 ] For the following reasons, I decided to issue the stay. Positions of the Parties Applicant [ 7 ] The Applicant submitted that if a stay is not granted his application for leave to appeal to the Supreme Court of Canada will be rendered moot. He says the issue raised by the Applicant has been simmering in the legal world for years and the only way it can get to the appellate level for determination is through the process undertaken by the Applicant.

He says that he has raised a serious issue, he will suffer irreparable harm if the stay is not granted and the balance of inconvenience strongly favours the granting of the stay as the rights of the media will only be put on hold while his rights will be permanently affected. The Crown [ 8 ] The Crown submitted that the matter could come before the Supreme Court in another case so the argument that this is the only way to obtain appellate review has no merit.

They say that the balance of convenience favours the open court principle as a ban could hamper law enforcement because people with information relative to the charges against the Applicant would not know to come

forward. CBC/CTV [ 9 ] CBC/CTV acknowledged that it is the R.J.R. – MacDonald test that applies. They also acknowledge that this court has the jurisdiction to enter the stay. They submitted that the Applicant has not raised a serious issue and the application for leave to appeal will not succeed as it does not raise an issue of national importance which is one of the criteria for success on such an application. They say that this is simply an appeal on the facts and it does not raise a novel issue. They say that the Applicant has not shown that he would suffer irreparable harm.

His fair trial rights would be protected throughout. On the balance of convenience, CBC and CTV submitted that the Applicant’s personal embarrassment isn’t a factor to be considered. They say that to grant a stay would be to give the Applicant the remedy he originally sought indirectly when it was denied to him directly.

In the alternative, they submitted that if any stay is granted, it should only be in respect of the non-publication order and not the sealing order which should be vacated. analysis Stage One – Is there a serious issue to be tried? [ 10 ] I find that the Applicant has established that there is a serious issue to be tried.

The court in R.J.R. – MacDonald instructed that this element of the test “should be determined by a motions judge on the basis of common sense and an extremely limited review of the case on the merits.” The fact that I have already rendered a judgment on the merits is a relevant consideration but is not conclusive. [ 11 ] On the main action, the Applicant presented well-reasoned and cogent submissions seeking a publication ban and, although they were ultimately unsuccessful, they nonetheless raised important and novel issues at least in the sense that neither party was able to direct me to a similar binding authority.

The test for a common law publication ban set out in Sherman Estate v. Donovan , 2021 SCC 25 at para. 61 , allows that in the right circumstances a person’s privacy and personal dignity could reach the level of an important public interest to which court openness could pose a serious risk and which would warrant a publication ban. This is an issue that to my knowledge has not been put before the Supreme Court of Canada in respect of a person charged with a criminal offence.

Because a discretionary common law order of a Superior Court Judge (such as a publication ban) may only receive appellate review by way of direct reference to the Supreme Court of Canada, this is another element supporting the decision that this is a serious issue. [1] [ 12 ] The result of this application will not affect the outcome of the criminal proceeding against the Applicant and, therefore, it is unnecessary to go beyond a “preliminary investigation of the merits”.

The case that the Applicant hopes to obtain leave to present to the Supreme Court of Canada is neither frivolous nor vexatious and I will therefore move on to consider the second and third stages of the R.J.R. – MacDonald test. Stage 2 – Irreparable Harm [ 13 ] If a stay is not granted in this case, the Applicant’s case in the Supreme Court of Canada will effectively be over. As counsel for the Applicant stated, “It will be impossible to put the genie back in the bottle”. In other words, the Applicant’s name and identity will be disclosed and any decision in the Supreme Court on the merits would be rendered moot.

As stated in R.J.R. – MacDonald “‘Irreparable’ refers to the nature of the harm rather than its magnitude.” I am satisfied on the evidence in the application that if his identity is disclosed, it is more likely than not that the Applicant will at least suffer personal embarrassment and perhaps loss of business which will not be recoverable in damages. [ 14 ] I am satisfied therefore that the Applicant will suffer irreparable harm if the application for a stay is denied. Step 3 – Balance of Inconvenience [ 15 ] In my view, the balance of inconvenience favours the Applicant.

If his identity is published, his right to have access to the full legal process will be thwarted. An appeal of the decision to refuse a publication ban will be rendered moot. This temporary ban will allow the Supreme Court of Canada to exercise its jurisdiction. [ 16 ] On the other hand, the restriction on the open court principle will be minimal. Members of the public will be able to attend all court hearings. The media will be able to report on the proceedings provided they do not identify the Applicant. Indeed, that has been the case thus far.

The damage to the Applicant will be irremediable wherein the damage to the open court principle will be that it will be put on hold for a comparatively short time. [ 17 ] The parties agreed that the sealing order should be vacated. This also lessens the impact on the open court principle as the media and the public at large may now have access to the file material.

CONclusion [ 18 ] In the result, I order that my decision of 23 March 2022 denying the Applicant’s application for a publication ban on the disclosure of his name or information which might lead to the disclosure of his identity is stayed in respect of the non-publication order only. The sealing order is vacated as ordered. [ 19 ] Since success on this application was divided, I exercise my discretion to order that all parties will bear their own costs. _____________________________ James P. Adams Justice