Vahid Eghtesad, Azam Mokarrami v. Ali Eghtesad, 2024 BCCA 32

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Eghtesad v. British Columbia (Director of Civil Forfeiture), 2024 BCCA 32 Date: 20240129 Docket: CA49001 Between: Vahid Eghtesad, Azam Mokarrami and Ali Eghtesad Appellants (Defendants) And Director of Civil Forfeiture Respondent (Plaintiff) And Postmedia Network Inc.

Respondent (Applicant) And The Owners and All Others Interested in the Properties Respondents (Defendants) FILE SEALED IN PART Restriction on Publication : Pursuant to the Supreme Court of British Columbia’s inherent jurisdiction, there is a ban on the publication of any contact information for any of the defendants, and on any information identifying the street addresses or legal descriptions of any of the four properties described in the notice of civil claim in these proceedings. Before: The Honourable Justice Griffin The Honourable Madam Justice DeWitt-Van Oosten The Honourable Mr.

Justice Voith On appeal from: An order of the Supreme Court of British Columbia, dated March 20, 2023 ( British Columbia (Director of Civil Forfeiture) v. The Owners , 2023 BCSC 432 , Vancouver Docket S2010344). Counsel for the Appellants: J. Narwal, KC Counsel for the Respondent, Director of Civil Forfeiture: E.A.V. Madhur Counsel for the Respondent, Postmedia Network Inc.: S.A. Dawson Place and Date of Hearing: Vancouver, British Columbia October 11, 2023 Place and Date of Judgment: Vancouver, British Columbia January 29, 2024 Written Reasons by: The Honourable Mr. Justice Voith Concurred in by:

The Honourable Justice Griffin The Honourable Madam Justice DeWitt-Van Oosten

Summary: The appellants challenge an order limiting the scope and terms of a sealing order and publication ban obtained within civil forfeiture proceedings. The appellants seek to reinstate the terms of the original order which restricted disclosure of certain individuals’ identities, personal addresses and other information. Held: Appeal dismissed. Given the order was a discretionary one, the judge is owed deference. The judge properly considered and applied the law applicable to discretionary limits on public access to court proceedings.

The judge did not ignore or misapprehend the evidence and she properly considered the appellants’ proposed order. It was open to the judge to conclude, based on the record before her, that it was unnecessary to restrict public access to the appellants’ identities. Reasons for Judgment of the Honourable Mr. Justice Voith: [ 1 ] This appeal concerns the scope and terms of a sealing order and publication ban, obtained within civil forfeiture proceedings, that is intended to protect specific individuals who are alleged to be at risk of retributive gang violence.

The appellants seek to reinstate the terms of the original order made which restricted public disclosure of the individuals’ identities, their addresses and other personal information. They allege the hearing judge, who limited the scope of the sealing order and publication ban, erred in her application of the law that governs the restriction of public access to court proceedings. In my view, for the reasons that follow, the appeal should be dismissed.

Background and the Judge’s Reasons [ 2 ] The original Notice of Civil Claim, filed by the Director of Civil Proceedings (the “Director”) on October 15, 2020, named the owners and others interested in the property claimed for forfeiture as defendants. This included Amir Eghtesad and six other named defendants who are all either family members or associates of Mr. Eghtesad. Mr. Eghtesad was a former gang member who, in 2014, pleaded guilty to the murder of a rival gang leader.

The Notice of Civil Claim included information such as the addresses and legal descriptions of the various defendants’ places of residence, and the familial relationships of some of the defendants. [ 3 ] On October 22, 2020, the Vancouver Sun, a Postmedia Network Inc. (“Postmedia”) publication, published an

article about the Director’s claim that included information, contained in the Notice of Civil Claim, about some or all of the defendants. That same day, counsel for one of the defendants appeared in court and obtained orders sealing the entire court file and prohibiting the publication of names, contact information, and other identifying information about the defendants or about the items of real and other property that were the subject matter of the action. The Director took no position on the application. The media were not notified of the application and no media representatives attended.

There is no suggestion that the failure to give notice to Postmedia, or any other media representative, was improper or in bad faith.

The relevant Supreme Court Practice Directions (Nos. 56 and 58) did not, in the particular circumstances of the application, require such notice. [ 4 ] The sealing and publication ban orders remained in effect but were varied by consent on March 30, 2021 to give counsel for Postmedia access to the sealed materials for the purpose of bringing an application before the judge. [ 5 ] On November 18, 2022, Postmedia applied for orders setting aside or varying the orders made on October 22, 2020. The application was heard by Associate Chief Justice Holmes.

Her reasons are indexed at 2023 BCSC 432 . [ 6 ] Postmedia submitted that the Notice of Civil Claim should only be redacted to remove the street name and legal description for Mr. Eghtesad’s home address. It further submitted that if the Court determined further redactions were necessary, those redactions should be limited to the addresses and legal descriptions of the other properties involved in the action. [ 7 ] The defendants, in turn, contended that if any sealed materials were to be released to the public, they should be redacted to remove:

a) the street and legal descriptions of all of the properties, which would be replaced by respectively, Property 1, Property 2, Property 3, and Property 4;

b) the names of the defendants, which would be replaced by Party A through Party G;

c) any identifying information regarding the defendants, including about familial relationships among them; and

d) all information about the underlying police investigation. [ 8 ] The judge relied primarily on the legal requirements described in Sherman Estate v. Donovan , 2021 SCC 25 for any discretionary limit on the openness of the courts to the public . She emphasized the important role that members of the media, who generally report freely on matters before the courts, serve in maintaining and contributing to the fairness and accountability of the justice system.

She also recognized, however, that there will be circumstances that justify restrictions on openness and, in that regard, referred to the following guidance found in Sherman Estate : [3] …Where a discretionary court order limiting constitutionally - protected openness is sought — for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order — the applicant must demonstrate, as a threshold requirement, that openness presents a serious risk to a competing interest of public importance. That this requirement is considered a high

bar serves to maintain the strong presumption of open courts. Moreover, the protection of open courts does not stop there. The applicant must still show that the order is necessary to prevent the risk and that, as a matter of proportionality, the benefits of that order restricting openness outweigh its negative effects. … [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 ). [ 9 ] The judge dealt with each of the foregoing requirements.

Though she recognized the various questions required distinct enquiries, she chose to discuss the second and third Sherman Estate enquiries together. The first Sherman Estate question: Does court openness pose a serious risk to public safety? [ 10 ] There were various pieces of evidence before the judge that addressed the risk to safety the defendants faced if certain information in the Notice of Civil Claim was disclosed.

Though the appellants and respondent respectively emphasize different aspects of the evidence that was before the judge, the details of that evidence, and the weight the judge gave different pieces of evidence, is not, with a few exceptions I will return to, relevant. This is because neither the appellants nor the respondent challenges the judge’s central factual findings. The judge ultimately concluded that “the evidentiary record in support of the defendants’ position that they are at serious risk is somewhat thin”: para. 39.

Nevertheless, the judge recognized “the intrinsic difficulty … of marshalling more specific evidence of risk”.

She found that “the record as a whole supports the defendants’ position that to vacate the orders entirely would present a serious risk to individual and public safety”: para. 40. [ 11 ] The judge further found “that people associating with [Amir Eghtesad] will also be at risk, whether from stray bullets intended for Amir Eghtesad or as intended targets themselves because of their relationship with him”: para. 43. [ 12 ] With these findings in hand, the judge concluded: [46] In my view, if one or more of the defendants are at risk in the way I have described, then to publicly disclose the defendants’ places of residence would increase those risks by revealing where the defendants may be found. … [48] I am therefore satisfied that unrestricted public access to the information and materials relating to the proceedings would post a serious risk to an important public interest – the first aspect of the Sherman Estate test – namely, the interest in protecting the safety of individuals engaged by the proceedings.

The second and third Sherman Estate questions: Are the Orders necessary because reasonable alternative measures will not suffice? Are they beneficial on balance? [ 13 ] The judge answered the foregoing questions as follows: [51] In my view, the answers to both questions do require restrictions on public access to information about where the defendants live, but they do not require restrictions on public access to any other information, including the names of the defendants and the details of the investigation underlying the litigation.

The orders are unnecessary as currently framed, and, although unrestricted openness would pose a serious risk to an important public interest, reasonable alternative measures are available to address the risk. [52] As I have discussed, the identified risk is to the safety of one or more of the defendants, and there is a strong public interest in reducing that risk by restricting public access to information about the locations of their residences, or where they may often be found.

On the other side of the balance is the strong public interest in knowing the types and location of those properties, three of which the Director is claiming for forfeiture. However, it is difficult to view the negative effects of restricting public access to that information as being weightier in the analysis than the benefits for individual and public safety. [53] The tilt of the balance is different, in my view, in relation to information identifying the defendants and their relationships among them, or describing the details of the underlying investigation.

… [60] If the orders remain in place, as currently framed, the press will be unable to report on any of the key details of the case.

Thescope of the orders will not be proportional to the risk the orders seek to prevent, because, I have found, the risk arises from thedisclosure of the defendants’ places of residence, and not from revealing that the defendants are involved in civil forfeiture proceedings,or from disclosing their family or other connections or the details of the investigation as described in the notice of civil claim. [61] The appropriate balance can be achieved by reducing the scope of the orders to target the established risk and no more, as theorders I will make will endeavour to do. [Emphasis in original.] [14] Based on the foregoing considerations, the judge varied the sealing order and publication ban first pronounced on October 22,2020.

She ordered that the street addresses and legal description of the properties identified in the court file be redacted or otherwiseobscured from view. She ordered that any materials filed in the future must similarly not refer to the street addresses or legal descriptionsof the properties listed in the Notice of Civil Claim. She ordered a publication ban on “any contact information for any of thedefendants” and on any information identifying the street addresses or legal descriptions of any of the properties listed in the Notice ofCivil Claim.

She declined to make any of the further orders sought by the appellants which were identified earlier at paragraph 7 of thisjudgment. Issues on appeal [15] The appellants contend the judge erred in “applying the law governing orders restricting media access to court proceedings” inthe following ways:

a) concluding “without explanation and in apparent contradiction of the finding of a risk to the [a]ppellants’ safety… that it wasunnecessary to restrict public access to their identities”;

b) concluding that allowing public access to the appellants’ names while restricting their addresses would accomplish the objective ofconcealing their place of residence; and

c) failing, within the proportionality analysis, to consider the scope of the order proposed by the appellants as against the public interestin the subject matter of the civil forfeiture action. Standard of review [16] The parties agree that the judge’s order was discretionary. The order also affected the openness of court proceedings.Accordingly, the analytical approach described in Canadian Broadcasting Corp. v. The Queen, 2011 SCC 3 at para. 13, relying onVancouver Sun (Re), 2004 SCC 43 at para. 31, would normally apply.

However, the appellants do not argue that the order below was notcompliant with the Canadian Charter of Rights and Freedoms. Instead, they accept this appeal engages the standard of review applicableto discretionary orders. That standard requires deference to the judge below unless she erred in principle, ignored or misapplied a relevantfactor, or was so clearly wrong so as to amount to an injustice: Ip v. Wilson, 2019 BCCA 189 at para. 4. Analysis [17] The principles that govern the disposition of this appeal are largely uncontroversial.

The parties accept the judge correctlyidentified the relevant legal framework. They also rely, in significant measure, on the same authorities, though they emphasize differentportions of those authorities. Notwithstanding this general agreement, there is value in emphasizing certain principles that areparticularly germane to the issues raised. [18] Court proceedings are presumptively open to the public: Sherman Estate at para. 37, relying on A.G. (Nova Scotia) v. MacIntyre,[1982] 1 S.C.R. 175 at 189, and A.B. v. Bragg Communications Inc., 2012 SCC 46 at para. 11.

The burden lies on anapplicant who seeks an exception to the open court principle: Sherman Estate at para. 38. [19] There is an important public interest in protecting individuals from physical harm: Sherman Estate at para. 96. Whether thatinterest is at “serious risk” in a given case is “a fact-based finding that, for the judge considering the appropriateness of an order, isnecessarily made in context”: Sherman Estate at para. 42. [20] Direct evidence “is not necessarily required to establish a serious risk” of physical harm: Sherman Estate at para. 97.

At the sametime, the “process of inferential reasoning is not a licence to engage in impermissible speculation”: Sherman Estate at para. 97 and thefurther authorities that are referred to therein. Thus, the risk of harm must be well-grounded in the evidence: Toronto Star NewspapersLtd. v. Ontario, 2005 SCC 41 at para. 27, citing R. v.

Mentuck, 2001 SCC 76 at para. 34. [21] Importantly, for present purposes, the issue is “not whether the affected individuals face a safety risk in general, but ratherwhether they face such a risk as a result of the openness of [the court files in issue]”: Sherman Estate at para. 100; see also R. v. Klos,2022 BCCA 105 (Chambers) at para. 12. [22] On appeal, the Director took no position on the first two of the Sherman Estate factors. The Director submits that on the thirdelement—proportionality—the court should take into account that civil forfeiture proceedings are brought and conducted in the public

interest and that the aim of preventing the unlawful use of property is advanced when the public has access to information about that alleged unlawful use. The Director correctly emphasizes that the public nature of a case can strengthen the importance of open justice when assessing the proportionality of a proposed sealing order or publication ban: Sierra Club of Canada v. Canada (Minister of Finance) , 2002 SCC 41 at para. 83 .

Issue 1: Did the judge err in concluding it was unnecessary to restrict public access to the appellants’ identities? [ 23 ] Though the appellants argued before the judge that she should limit public access to various aspects of the Notice of Civil Claim and court file, their dominant focus on appeal pertains to the judge’s failure to restrict access to their identities. [ 24 ] The appellants advance various submissions. They contend it is “unclear” why the judge did not consider their names and identities as a separate question from their home addresses as “relevant to the mitigation of their potential danger”.

They assert that other courts have readily accepted that where it is necessary to protect an individual from physical harm, the protection extends to that individual’s name and identity. Relying on the same authorities, they emphasize those courts have considered it “self-evident” that disclosure of the identity of a person at risk would significantly heighten the existing risk to their safety.

Finally, they argue that restricting a threatened individual’s name and identity “constitutes a far more powerful and all-encompassing means” of protecting them than attempting to restrict information about where they may be found. [ 25 ] Different components of these submissions suffer from different frailties. First, it is not fair or accurate to suggest it is “unclear” why the judge did not consider the appellants’ names and identities as separate from their places of residence as “relevant to the mitigation” of their risk.

The judge did exactly that. [ 26 ] The judge, when addressing the appellants’ places of residence, found that “to publicly disclose the defendants’ places of residence would increase those risks by revealing where the defendants may be found”: para. 46. The judge, however, concluded that the application of the second and third elements of the Sherman Estate framework “tilt[ed] the balance” differently in relation “to information identifying the defendants and their relationships among them”: para. 53. [ 27 ] The judge came to this conclusion for different reasons.

She accepted that “public knowledge of the simple fact that the defendants are involved in the litigation may contribute to the risk they face”: para. 54. Nevertheless, she said: [55] However, the analysis required by Sherman Estate does not require the elimination of all potential risk to the public interest sought to be protected. It asks whether reasonably alternative measures will prevent the risk, and assesses the proportional benefits and negative effects of restrictions on court openness. As Nordheimer J. discussed in R. v.

Kossyrine , 2011 ONSC 6081 at para. 16 , in the different context of considering a publication ban to protect the two accuseds’ fair trial rights, the test asks whether the restriction is necessary, and not whether it offers “the safer route” or should be imposed “out of an abundance of caution”. [ 28 ] The judge also considered that if any risk arose from the defendants being required to attend court, there were “various alternative measures” available to safeguard against such risks: para. 56.

Still further, and this is an instance where the evidence of risk to the appellants is relevant to the appellants’ submissions, she identified various frailties in the evidence the appellants relied on: paras. 57–59. [ 29 ] Ultimately, the judge found that the “scope of the orders [being sought] will not be proportional to the risk the orders seek to prevent, because … the risk arises from the disclosure of the defendants’ places of residence, and not from revealing that the defendants are involved in civil forfeiture proceedings …”: para. 60.

This was a discretionary decision that was open to the judge on the record before her. [ 30 ] The appellants also rely on different decisions where judges have determined that it was appropriate to protect the name or identity of an individual. The appellants point, for example, to X. v. Y ., 2011 BCSC 943 and R. v. Esseghaier , 2017 ONCA 970 (both of which are referred to at para. 101 in Sherman Estate ) as instances of where this has occurred. However, these authorities do not give rise to any inflexible rule or principle. Instead, both cases were based on the specific evidence before the judge: for X. v.

Y . see paras. 24–25 , for Esseghaier see paras. 41 and 43 . Each case must necessarily be decided on the record before the judge. As noted, the appellants do not contend the judge misapprehended the evidence before her or that her concerns with aspects of the appellants’ evidence were misplaced. [ 31 ] Finally, the appellants argue that restricting the disclosure of a person’s name is a markedly more effective means of safeguarding the person’s safety than restricting the disclosure of their place of residence. Respectfully, this is not an obvious proposition.

More importantly, this submission does no more than assert the judge should have come to a different conclusion than she did. It does not give rise to any reviewable error. [ 32 ] In my view, there is no merit to this first ground of appeal.

Issue 2: Did the judge err in concluding that redacting the addresses, but not the appellants’ names, would accomplish the objective of concealing where they reside? [ 33 ] This ground of appeal is based, in significant measure, on evidence filed by the respondent that established a third party can, using the name of a person, determine the person’s address through a particular provincial database.

Thus, the address of a person, considered by the judge to be worthy of protection, can readily be identified by a third party if they have the person’s name. [ 34 ] I do not question that this evidence creates a certain equivalency between a person’s address and their identity. Either piece of information enables a third party to access the other. I also accept that this equivalency detracts from the distinction the judge drew

between the two types of information. [35] Had the judge not expressly alluded to this evidence in her reasons, I would have been concerned that she had either ignored ormisapprehended the evidence before her. But she did not. She said: [47] I acknowledge that their places of residence may be obtained from government sources, as Postmedia notes. However, thosesources may not always remain available – Mr.

Narwal referred to legislation that may allow for such information to be obscured frompublic view in certain circumstances – and in any event they may not be widely known. [36] I emphasize that the order being appealed from is a discretionary decision. It is inherent in the nature of a discretionary decisionthat different judges, faced with the same evidence, may well come to a different decision: R v. K.M., 2017 ONCA 805 at para. 34; R. v.Durette, [1994] 1 S.C.R. 469 at 548, . That reality does not, however, give rise to reviewable error. I would not accedeto this ground of appeal.

Issue 3: Did the judge err in her proportionality analysis? [37] This ground of appeal is limited to the submission that to the extent the judge “focused solely on the effect of upholding theexisting publication ban and sealing order, she erred in failing to consider her discretion to modify the order…”. In particular, theappellants contend that the judge should have considered their proposed variation of the sealing order and publication ban. [38] Respectfully, this submission is again not faithful to the judge’s reasons.

The judge expressly referenced the appellants’ proposedterms: [15] The defendants proposed that any sealed materials to be released to the public be redacted to remove the following: • the street and legal descriptions of all of the properties, which would be replaced by respectively, Property 1, Property 2, Property 3,and Property 4; • the names of the defendants, which would be replaced by Party A through Party G; • any identifying information regarding the defendants, including about familial relationships among them; and • all information about the underlying police investigation. [39] The judge then referred to and considered the discrete aspects of this proposal at different parts of her judgment.

Indeed, she didso repeatedly. Examples of this are found at paras. 53, 56 and 60 that I have referred to. Each of these examples is found in the judge’sproportionality analysis. She ultimately concluded: [60] If the orders remain in place, as currently framed, the press will be unable to report on any of the key details of the case.

Thescope of the orders will not be proportional to the risk the orders seek to prevent, because, I have found, the risk arises from thedisclosure of the defendants’ places of residence, and not from revealing that the defendants are involved in civil forfeiture proceedings,or from disclosing their family or other connections or the details of the investigation as described in the notice of civil claim. [Emphasis added.] [40] The underlined portion of the foregoing paragraph establishes the judge was well aware of the appellants’ alternate proposal, thatshe weighed the components of that proposal and that she was only prepared to accept the portion of the proposal that pertained to theiraddresses or places of residence.

I would not accede to this last ground of appeal. Disposition [41] In my view, the appeal should be dismissed. The respondent and Director do not seek any cost orders. Thus, each party is to beartheir own costs. Further, in accordance with their terms, the anonymization and sealing orders of Justice Skolrood and Justice Hunter,dated May 11, 2023 and July 21, 2023 respectively, are of no further force and effect. “The Honourable Mr. Justice Voith” I AGREE: “The Honourable Justice Griffin” I AGREE: “The Honourable Madam Justice DeWitt-Van Oosten”