2012 QCCA 2224, 2012 QCCA 2224

Droit de la famille — 123545 2012 QCCA 2224 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022848-121 (500-04-056893-119) DATE: December 13, 2012 CORAM: THE HONOURABLE BENOÎT MORIN, J.A. PIERRE J. DALPHOND, J.A. JULIE DUTIL, J.A. A.X. A.X. as the tutor of X APPELLANTS – Applicants - Applicants v. ATTORNEY GENERAL OF QUEBEC RESPONDENT – Impleaded party and DIRECTEUR DE L’ÉTAT CIVIL B.Y.

IMPLEADED PARTIES – Impleaded parties JUDGMENT [ 1 ] As part of the appeal, the appellant is asking the Court for permission to proceed using pseudonyms, for a publication ban and for sealing and confidentiality orders of the file including all procedures and exhibits. [ 2 ] For the reasons of Dalphond J.A., with which Morin and Dutil JJ.A. agree; the Court : [ 3 ] GRANTS the motion in part as follows: - to order the sealing of the court records, as presently constituted, in both the Superior Court and this Court; - to permit the appellant to proceed anonymously in appeal; - to order with regard to any new proceedings in this appeal, that two sets of proceedings be made: one complete, to be filed in the sealed court record, not accessible to the public, and another one, to be filed in a court record accessible to the public, from which any personal information shall have been removed by the filing party, as approved by the attorney for the appellant before being made accessible; - to order the clerks of the Court of Appeal and of the Superior Court to act accordingly; - to order the removal of personal information from any judgment before it becomes accessible; - to ban the publication of the names of the appellant, the child and the other parent as well as any other information that may identify any one of them; and - to order that a copy of the present judgment be included in the file open to the public. [ 4 ] THE WHOLE without costs.

BENOÎT MORIN, J.A.

PIERRE J. DALPHOND, J.A. JULIE DUTIL, J.A. Mtre Julius Grey Mtre Deborah Mankovitz Grey & Casgrain For the Appellants/Applicants Mtre Mario Normandin Bernard Roy (Direction générale des aff. jur. et légis.) For the Respondent Date of hearing: October 1, 2012 REASONS OF DALPHOND, J.A. [ 5 ] The Court is seized with an Amended Motion for Confidentiality.

THE CONTEXT [ 6 ] In a recent decision, the Immigration and Refugee Board concluded that the appellant, along with a child, discharged the burden of establishing that they would face the serious possibility of persecution by relatives and/or by the state if they were returned to their home country. Accordingly, the Board granted them refugee status. [ 7 ] In order to ensure that the refugees remain hidden, the appellant applied to the registrar of civil status to have a change of name.

This application was dismissed since the appellant, though domiciled in Quebec for more than one year, is not a Canadian citizen, as required by art. 59 of the Civil Code of Quebec ( C.C.Q .). [ 8 ] Further to that decision, the appellant decided to challenge the constitutionality of the citizenship requirement under the C.C.Q. by way of a declaratory judgment (art. 453 Code of Civil Procedure ). On June 15, 2012, this motion was dismissed by the Superior Court for lack of service to an interested party, the other parent, as required by art. 454 C.C.P .

Since the appellant is attempting to hide from the other parent, this motion was not served on the latter. [ 9 ] The appellant has inscribed in appeal from this final judgment of the Superior Court.

As part of the appeal, the appellant asks this Court for permission to proceed using pseudonyms, for a publication ban and for certain sealing and confidentiality orders over the file, including all procedures and exhibits. [ 10 ] The motion is opposed in part by the Attorney General of Quebec, the respondent to the constitutional challenge who pleads for less expansive orders in order to preserve the public nature of this debate. [ 11 ] Finally, it should be mentioned that on August 6, 2012 a panel of this Court temporarily ordered the sealing of the court records in both the Superior Court and this Court until October 1, 2012.

On that day, we renewed this order until the release of this judgment. ANALYSIS [ 12 ] The open court principle requires that court proceedings be open and accessible to the public and to the media. It has been described as a hallmark of a democratic society ( A.B. v. Bragg Communications Inc ., 2012 SCC 46 ). [ 13 ] Some restrictions are permissible, however.

In family law cases, for example, art. 815.4 C.C.P. prohibits the publication or broadcasting of any information that could allow a party to a proceeding, or a child whose interest is at stake, to be identified. [ 14 ] In the case at bar, we have, on one hand, a challenge to the constitutionality of a provision of the C.C.Q . This is clearly a matter of public interest ( Vancouver Sun (re) , 2004 SCC 43 , par. 51 , [2004] 2 S.C.R. 332).

The media, legal experts and the general public are therefore entitled to know about this constitutional challenge ( Droit de la famille — 08162 , 2008 QCCS 285 , paras. 73 and 78 , [2008] R.J.Q. 449). [ 15 ] On the other hand, the appellant and/or the child would face the likelihood of serious harm, including the risk of kidnapping and even death, if some relatives were made aware of their whereabouts. This much is established prima facie by the Immigration and

Refugee Board’s decision.

This situation is sufficiently compelling to warrant the consideration of certain derogations to the general rule. [ 16 ] In an amended motion, the appellant requests four restrictions to the open court principle: the right to proceed anonymously, a prohibition on access to court records through a permanent sealing order, a prohibition on access to any resulting judgment unless any passage that could be used to identify the appellant, the child and the other parent have been removed, as well as a publication ban designed to protect the identification and location of the appellant and the child. [ 17 ] The inquiry shall first examine whether each of the measures sought is necessary to protect the appellant and the child.

If there are alternative measures that provide adequate protection while occasioning a lesser impairment of the media’s freedom of expression and the open court principle, then those measures should be adopted. If there are no such alternative measures, the inquiry should then seek to balance the open court principle against the need to protect the appellant and the child. [ 18 ] In my view, the use of pseudonyms for the appellant and the child during the appeal procedures, as authorized by the Superior Court, is a measure that adequately balances the need for protection and the open court principle.

It is true that such a measure goes beyond the usual practice in family cases, where publication bans typically prevent the identification of the parties by the public but do not conceal the parties’ identities to the media or lawyers that require access to the file. However, this departure is justified considering the compelling interest in preserving the life and security of the appellant and the child. [ 19 ] The second requested restriction is excessive.

The appellant sought a permanent sealing order of the court record barring access to all except those who obtained prior authorization from the Chief Justice of the relevant court. An alternative method would occasion a lesser impairment of the media’s freedom of expression and the open court principle: this matter could proceed with two sets of procedures, exhibits and other documents. One original and complete set shall be sealed and reserved to court officials.

A complete copy of that set of procedures shall be made and any information that may be used to identify the appellant, the child or the other parent shall be removed. This copy shall then be made accessible to the public.

This measure was adopted in a constitutional dispute that emerged in another family matter ( Droit de la famille — 08162 , supra ). [ 20 ] As for the third restriction regarding judgments, nothing here justifies denying access to truncated versions of these judgments. [ 21 ] Finally, a publication ban on information that could be used to identify the appellant or the child is a restriction commensurate to the interests at stake here. The measure is all the more reasonable in so far as it represents the current practice in family law cases and that this present case originates in a family setting.

CONCLUSION [ 22 ] For these reasons, I would grant the motion in part as follows: - to order the sealing of the court records, as presently constituted, in both the Superior Court and this Court; - to permit the appellant to proceed anonymously in appeal; - to order with regard to any new proceedings in this appeal, that two sets of proceedings be made: one complete, to be filed in the sealed court record, not accessible to the public, and another one, to be filed in a court record accessible to the public, from which any personal information shall have been removed by the filing party, as approved by the attorney for the appellant before being made accessible; - to order the clerks of the Court of Appeal and of the Superior Court to act accordingly; - to order the removal of personal information from any judgment before it becomes accessible; - to ban the publication of the names of the appellant, the child and the other parent as well as any other information that may identify any one of them; and - to order that a copy of the present judgment be included in the file open to the public.

PIERRE J. DALPHOND, J.A.