Jane Doe (#24) Plaintiff And: His Majesty in Right of Newfoundland v. Labrador, 2022 NLSC 158

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Jane Doe (#24) v. Newfoundland and Labrador , 2022 NLSC 158 Date : November 3, 2022 Docket : 202201G0153 Between: Jane Doe (#24) Plaintiff And: His Majesty in Right of Newfoundland and Labrador Defendant And: X.Y. INTERVENeR Before: Justice Peter A. O'Flaherty Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: September 8, 2022

Summary: In a civil action against the provincial Crown, the Plaintiff alleged that a police officer had sexually battered her while he was on duty in 2014. The retired officer, X.Y., intervened in the civil action to apply for an order to prevent the publication of his name or any information that might lead to his identity. Held: The Intervener did not establish that, in the absence of the order, the open court principle would operate to put an important public interest at serious risk. The civil action is concerned with matters of general public interest and concern, and the negative effects of imposing a publication ban would outweigh its positive benefits. The application was dismissed.

Appearances: Lynn M. Moore & James R.A. Locke Appearing on behalf of the Plaintiff Donald E. Anthony, K.C. Appearing on behalf of the Defendant Glenda C. Best, K.C. & Patrick Cameron Appearing on behalf of the Intervener Authorities Cited: CASES CONSIDERED: Sherman Estate v. Donovan , 2021 SCC 25 ; Doe v. A.B. , 2021 BCSC 651 ; G.(B.) v. British Columbia , 2002 BCSC 1417 ; R.R. v. Newfoundland and Labrador , 2022 NLSC 46 ; Phillips v. Vancouver Sun , 2004 BCCA 14 STATUTES CONSIDERED: Canadian Charter of Rights and Freedoms ,

Part 1 of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 REASONS FOR JUDGMENT O'Flaherty, J. : INTRODUCTION [ 1 ] This is an application in a civil action for a common law ban on the publication of the name of a non-party, and on any information that might identify the non-party. The basic question before the court is whether the non-party’s privacy concerns are sufficiently important to override the presumption that the business of the courts should be open to the public and the press. [ 2 ] The Plaintiff is a member of the Royal Newfoundland Constabulary (“RNC”).

She alleges that in June 2014 the Intervener, who was then a sergeant with the RNC, enticed the Plaintiff to enter a patrol vehicle on George Street, St. Johns, NL, supposedly to transport her safely home when she was in an intoxicated condition, when his true purpose was to commit a sexually battery. She further alleges that he then invited himself into her home and sexually battered the Plaintiff. [ 3 ] The Plaintiff has sued the Defendant, the provincial Crown, claiming it is vicariously liable for the damages for the sexual battery.

She alleges that by June 2014, the RNC and the Defendant knew or ought to have known the Intervener was enticing women into his patrol vehicle for that purpose. She claims that the Defendant breached common law, statutory and fiduciary duties owed to her when it failed to prevent the sexual battery. The Plaintiff was given leave by this court to commence a civil action against the Defendant by the pseudonym Jane Doe #24. [ 4 ] The Intervener is not named as a defendant in the civil action but he is identified as the perpetrator of the sexual battery.

The Intervener is not charged with a criminal or disciplinary offence in respect of the subject matter of the Plaintiff’s civil allegations and he asserts that he is innocent of them.

He has now retired and argues that the publication of his name, together with the allegations, has led to media reports that have irreparably damaged his reputation and social standing, and caused him and his family significant psychological and emotional harm . [ 5 ] I granted the Intervener leave to intervene in the civil action for the purpose of bringing an application for a publication ban on his name and any information that might identify him. He also seeks an order that the initials X.Y. be used in the civil action instead of the Intervener’s name.

The application is opposed by the Plaintiff as an unjustified limit on court openness. The Defendant takes no position. [ 6 ] The open court principle provides that the business of the courts should generally be open to the public and the press. A publication ban infringes on the open court principle and on the right of freedom of expression guaranteed in s. 2(

b) of the Canadian Charter of Rights and Freedoms ,

Part 1 of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 . [ 7 ] It is therefore an exceptional thing to grant any affected person an order to prevent the public from having full access to a court

proceeding and file. The law requires the Intervener to show that, absent a publication ban, the open court principle will operate to place an important public interest at serious risk. This is a high legal and evidentiary bar to meet. The Intervener must then also show that the serious risk cannot be addressed except by granting the exceptional order he is seeking, and he must show that the order is proportionate in that the benefits of the order outweigh its negative effects (see: Sherman Estate v.

Donovan , 2021 SCC 25 ). [ 8 ] For the reasons that follow, I find that the Intervener has not met the test for entitlement to a common law publication ban. His application did not pass the high initial bar of establishing that, without the ban, the open court principle would operate to put an important public interest at serious risk. Had it done so, I would also dismiss his application because this civil action raises matters of general public interest and the negative effects of a publication ban would outweigh its benefits. [ 9 ] The Intervener’s application is therefore dismissed.

THE PLEADINGS [ 10 ] The pleadings in this civil action allege that a sexual battery of the Plaintiff by the Intervener took place at the Plaintiff’s home in June 2014. The Plaintiff and the Intervener were both serving members of the RNC at the time. It is alleged that the Intervener, while he was a sergeant on duty on George Street in St.

John’s, NL, enticed her to enter his patrol vehicle when she was intoxicated, purportedly to bring her safely home but in fact his purpose was to commit a sexual battery. [ 11 ] The Plaintiff alleges that the Defendant, the provincial Crown, is responsible for the administration and operation of the RNC. The Plaintiff further alleges that by June 2014 the RNC and the Defendant either knew, or ought to have known, that the Intervener was enticing women into his patrol vehicle while on duty for the purpose of sexual battery and that they failed to prevent the sexual battery of the Plaintiff.

The Plaintiff’s claims that the Defendant was therefore negligent and breached its fiduciary and statutory duties to the Plaintiff, rendering it vicariously liable. [ 12 ] Paragraphs 6-8 and 10 of the Statement of Claim contain allegations about the conduct of the Intervener, who is identified by name, the RNC’s knowledge of the conduct in June 2014, and the negligence and breach of duty of the Defendant: 6. In June of 2014, the Plaintiff was at a bar on George Street, socializing and drinking alcohol. The Plaintiff became visibly intoxicated and decided to return home.

She encountered Sergeant Robert Baldwin, a police officer of senior rank and years of service to her (“Baldwin”). Baldwin was on duty and in a marked police vehicle. Baldwin and the Plaintiff agreed that he would drive her home. 7. Baldwin invited himself into her home for a beer. He sexually battered the Plaintiff by forcing his penis in her vagina. She attempted to move away from Baldwin, but he pursued intercourse anyways. When he was finished raping her, he left. 8.

The RNC knew, or ought to have known, that Baldwin was, while on duty, enticing women into his patrol vehicle for the ostensible purpose of providing transportation when his true purpose was to sexually batter those women. 10. At all times material to the action, the Defendant had common law, equitable, fiduciary, and statutory responsibility for and obligations to the Plaintiff, including duties of care, as well as non-delegable duties, and the Defendant was negligent in the exercise of its aforenoted authority, responsibilities, and obligations.

The Defendant is vicariously liable for the sexual battery committed by Baldwin. THE INTERVENER’S APPLICATION [ 13 ] The application states that the allegations in the pleadings, and the media attention which this case has generated, are extremely harmful to the Intervener’s reputation and psychological well-being. It attaches CTV, Globe and Mail and CBC media reports which describe the allegations and name the Intervener.

The media reports also refer to the conviction of a former RNC officer, Douglas Snelgrove, for sexually assaulting a woman in December 2014 while he was on duty. [ 14 ] The application claims that the objectively discernable harm suffered by the Intervener from the continued use of his name in this action amounts to an affront to his dignity that is a matter that concerns society at large.

The Intervener requests a publication ban to prevent further publication of his name or any information tending to identify him, an order that the initials X.Y. be used in this court, or any other court, instead of the Intervener’s name, and an order sealing this application. The Intervener submitted that the publication ban should remain in effect even if the court made a factual finding that he had committed the sexual battery in June 2014. [ 15 ] The Intervener filed a detailed Affidavit in which he denies the allegations against him in the Statement of Claim, in their entirety.

He states that he has not been investigated as a result of the Plaintiff’s allegation or charged with any criminal offence or police disciplinary offence.

The Intervener points out that he is not a named party in the action and as such he was given no notice of its commencement and has had no opportunity to issue a defence. [ 16 ] At paragraphs 17-23 of his Affidavit the Intervener outlines the serious impact the publication of the unfounded allegations of the Plaintiff in the media have already had on his reputation, his family, his social and community interactions, and his psychological and emotional well-being.

The Intervener asserts that the impact on his psychological well-being is compounded by the fact that the Intervener is a non-party to the civil action and is therefore unable to defend himself. [ 17 ] At paragraph 24 the Intervener asserts that further publication of his name in relation to the allegations of sexual battery and abuse of his power as a sergeant with the RNC will have a significant social, psychological and emotional impact on him and on his

family, and will cause irreparable damage to his reputation. [ 18 ] The Intervener was cross-examined on two areas of his Affidavit. At paragraph 13 he had deposed that he had never been the subject matter of a complaint before the RNC Complaints Commission.

On cross-examination he acknowledged that he had been the subject of a public complaint to the RNC Public Complaints Commission made by a member of the public regarding sexual misconduct. [ 19 ] At paragraphs 23 and 24 the Intervener had deposed that the publication and use of his name in the proceeding has had and will have an “immeasurable” and “significant” impact on his emotional and psychological well-being. On cross-examination he acknowledged that he is not a psychologist and has no degree or qualification in the field of psychology.

THE ISSUE [ 20 ] The sole issue I must decide is whether I should order a publication ban on the name and identity of the Intervener in this civil action. ANALYSIS The Governing Principles [ 21 ] The starting point is the open court principle. The principle provides that, in the absence of a compelling reason, court proceedings in Canada must be conducted openly in the face of all persons. This principle has long been recognized by the common law.

The authorities confirm that the open court principle is considered a central feature of our liberal democracy, and is tied directly to the constitutionally protected right of freedom of expression guaranteed under s. 2(

b) of the Charter . [ 22 ] Sherman Estate confirms that members of the public and the press therefore have a presumptive right to attend court hearings and to access court files. This means that the public is generally entitled to know who the parties to a case are, the positions of the parties, the names of the witnesses and the evidence they give. [ 23 ] In certain circumstances the open court principle is limited by a statutory enactment.

For example, both Parliament and the provincial legislatures have recognized that, due to the legal and developmental vulnerability of minors, there is an important public interest in protecting their privacy and identity in court cases which would be placed at risk by the open court principle.

A statutory publication ban on information identifying a minor is therefore applied in criminal cases, youth justice cases, and in family law proceedings involving children and youth. [ 24 ] In civil matters, the court in which the case is brought has authority to grant a common law order departing from the principle of court openness. For example, a person who claims to have been subjected to sexual assault may, on a properly grounded application, obtain an order sealing any documentation identifying the name of the person when the civil action is begun, and a publication ban.

Such an order was made by Noel, J. on January 12, 2022, permitting the Plaintiff to proceed with this action against the Defendant using the pseudonym Jane Doe #24. [ 25 ] Prior to the ruling in Sherman Estate , the case law identified broad principles to be applied in the lower courts in considering whether to grant such an order, but it arguably provided insufficient guidance on their application in concrete cases.

Furthermore, there was no single unified legal test applied to all applications for discretionary common law orders restricting court openness. [ 26 ] While the essence of the previous common law approach to the open court principle was maintained in Sherman Estate , the law regarding all common law orders restricting the open court principle was unified under a restated three-part test. [ 27 ] The test to be applied requires that any person asking the court to exercise discretion in a way that limits the open court principle must now 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. [ 28 ] The three-part test applies to all court files and to all proceedings in the court, whether criminal, civil, probate or other, subject to valid statutory exceptions. [ 29 ] Of specific relevance to the issues on this application, Sherman Estate addressed the question of whether the privacy concerns of affected individuals can amount to a valid important public interest sufficient to override court openness. [ 30 ] In Sherman Estate the court recognized that there is a public interest aspect of privacy relevant under the open court jurisprudence.

The Supreme Court ruled that privacy can amount to an important public interest sufficient to ground a common law order restricting court openness where it is necessary to protect an affected person from a serious risk that court openness will result in the dissemination of information that would be an affront to the person’s dignity (see: Sherman Estate , paragraphs 7 and 33 ). [ 31 ] It is not sufficient however to merely rely upon the public interest in the protection of human dignity as a recognized important public interest under the test in Sherman Estate .

To obtain the publication ban, the affected person must show that the information he seeks to have withheld from the public is sufficiently sensitive such that it can be said to strike at the biographical core of the person, and that there is a serious risk that its dissemination would threaten the dignity of the individual. [ 32 ] Even when the initial threshold is passed, an applicant must then also show that the order is necessary because the serious risk to the important public interest cannot be addressed except by granting the order he is seeking, and he must show that the order is

proportionate in that the benefits of the order outweigh its negative effects. [ 33 ] At the third stage, as part of the balancing exercise, the court considers whether the information the order seeks to protect from public access is of general public interest and whether it is peripheral or central to the judicial process.

The Positions of the Parties [ 34 ] The Intervener’s application states that the Plaintiff’s allegations, and the media reports, are extremely harmful to his reputation and psychological well-being and that the harm suffered by the Intervener from the continued use of his name amounts to an affront to his dignity that is a matter that concerns society at large. [ 35 ] The Intervener’s brief also argues that he is innocent of the allegations made about him in the civil action and that the “protection of the innocent” from serious allegations is a societal value of such importance that it may justify overriding the principle that the business of the courts must be open to the public.

He relies in support of this argument on authorities that pre-date the decision in Sherman Estate (see: Doe v. A.B . , 2021 BCSC 651 ; G. (B.) v.

British Columbia , 2002 BCSC 1417 ). [ 36 ] The Plaintiff submits that the law set out in Sherman Estate provides for a high legal and evidentiary bar for a publication ban, one which requires the Intervener to establish that, absent such an order, publication of the information presents a serious risk that the Intervener will suffer an affront to his dignity that society as a whole has an interest in protecting. [ 37 ] The Plaintiff submits that the application does not pass the initial stage of the analysis under Sherman Estate .

Relying on a recent decision of this court involving an application for a publication ban brought by a person charged with sexual assault, the Plaintiff submits that the information the Intervener seeks to prevent publication of, his identity in conjunction with the allegations, is not information of such a highly sensitive nature that it would engage a societal interest worthy of protection. [ 38 ] The Plaintiff submits that the fact that the Intervener has not been investigated or charged with a criminal or disciplinary offence with respect to the Plaintiff’s allegations does not entitle him to an automatic publication ban.

As to the authorities relying on the “protection of the innocent” in a civil action as an important public interest, the Plaintiff submits that they were decided before the decision in Sherman Estate on a different legal test and are no longer applicable or persuasive.

The First Stage – Is there a Serious Risk to an Important Public Interest? [ 39 ] The first stage of the test in Sherman Estate requires the Intervener to identify an important public interest that would be put at serious risk if the open court principle was not restricted in this civil action. [ 40 ] The Intervener claims that the publication of his identity in conjunction with the allegations of sexual battery and abuse of power will put two important public interests at serious risk.

The Intervener relies upon the public interest in the protection of the Intervener’s privacy insofar as the information he seeks to prevent publication of will rise to the level of an affront to his dignity, and the public interest in the “protection of the innocent” in a civil action. I will address both.

The Privacy Interests of the Intervener [ 41 ] Sherman Estate deals specifically with the circumstances in which the privacy concerns of an individual identified in a court file or proceeding can rise to the level of an important public interest which may overcome the presumption that the business of the courts must be open. [ 42 ] In Sherman Estate , the trustees of the estates of two Ontario residents who died in suspicious circumstances applied for an order to seal the probate files to protect the identity of the trustees and beneficiaries.

In the lower court a sealing order was granted on grounds which included the protection of the privacy interests of the persons identified as trustees and beneficiaries of the estates of the deceased. [ 43 ] In locating the broad principle of privacy in the existing open court jurisprudence, the Supreme Court of Canada held that the dissemination of personal information inherent in the operation of an open court system will unavoidably result in some degree of privacy loss that will cause inconvenience, and even upset and embarrassment for affected persons.

Kasirer, J. wrote that the loss of privacy resulting in these consequences does not rise to the level of an important public interest justifying an order placing a limit on court openness, but circumstances do exist where an aspect of a person’s private life has a plain public interest dimension that may justify such an order ( see: Sherman Estate , paragraphs 31, 32 ). [ 44 ] Kasirer, J. recognized that personal information disseminated to the public through a court file or in open court can result in an affront to an affected person’s dignity.

He wrote at paragraph 33 that, insofar as the concept of personal privacy serves to protect individuals from “an affront to a person’s dignity”, it can rise to the level of an interest that society, as a whole, has a stake in protecting.

Sherman Estate therefore stands for the proposition that the court can make an exception to the open court principle where personal privacy, in its protection of human dignity, is placed at serious risk by reason of the dissemination of sufficiently sensitive information. [ 45 ] In determining what constitutes information sufficiently sensitive to place this important public interest at serious risk, the court emphasized that the focus must be on the impact of the dissemination of the information.

As stated at paragraph 34: [34] … This public interest will only be seriously at risk where the information in question strikes at what is sometimes said to be the core identity of the individual concerned: information so sensitive that its dissemination could be an affront to dignity that the public would not tolerate, even in service of open proceedings. [ 46 ] Kasirer, J. repeatedly stressed the importance of the lower courts ensuring that meeting the initial threshold of “a serious risk to an important interest” remains a high bar to protect court openness. At paragraph 62 of the decision he stated:

[62] Second, I recall that in order to pass the first stage of the analysis one must not simply invoke an important interest, but must also overcome the presumption of openness by showing a serious risk to this interest. The burden of showing a risk to such an interest on the facts of a given case constitutes the true initial threshold on the person seeking to restrict openness. It is never sufficient to plead a recognized important public interest on its own. The demonstration of a serious risk to this interest is still required.

What is important is that the interest be accurately defined to capture only those aspects of privacy that engage legitimate public objectives such that showing a serious risk to that interest remains a high bar. In this way, courts can effectively maintain the guarantee of presumptive openness. [ 47 ] This court recently applied Sherman Estate on an application for a publication ban in a criminal proceeding brought by a practicing lawyer charged with sexual assault (see: R.R. v.

Newfoundland and Labrador , 2022 NLSC 46 ). [ 48 ] In R.R. , Adams, J. specifically considered whether the publication of the identity of the applicant would constitute an unacceptable invasion of his privacy because it posed a serious risk to the important public interest in the protection of personal dignity when highly sensitive personal information is at issue. [ 49 ] In terms of the impact of the publication of the identity of the applicant, Adams J. recognized that a criminal allegation of sexual assault would have serious consequences in terms of discomfort, embarrassment and shame for the applicant, his family, and in that case for his associates in the applicant’s law practice. [ 50 ] He noted however that in order for the publication of an allegation that a person has committed a sexual assault to pose a serious risk to the important public interest in the protection of personal dignity, Sherman Estate required that the information which the ban seeks to protect must reveal something intimate or personal about the applicant as an individual, if a serious risk to an important public interest in the protection of privacy is to be recognized. [ 51 ] At paragraph 69 of his reasons Adams J. referred to the specific types of highly sensitive information that, if exposed, could give rise to a serious risk to personal dignity under the first step of the test in Sherman Estate , stating: [69] …These included information related to stigmatized medical conditions, stigmatized work, sexual orientation and subjection to sexual assault or harassment.

It is interesting to note that the court referred to people who were subjected to sexual assault, but not person charged with committing a sexual assault. [ 52 ] In dismissing the application at the first stage of the three part test, Adams J. confirmed that a criminal allegation that a person has committed a sexual assault does not constitute personal information of the type that, if it was exposed, could give rise to a serious risk to personal dignity within the meaning of Sherman Estate . [ 53 ] In R.R. , at paragraph 72 , Adams, J. stated this conclusion succinctly: [72] I reject the Applicant’s assertion that the release of his identity on the facts of this case attack his biographical core.

The information which would be revealed is his name and the fact that he is being charged with a number of sexual offences. While it would undoubtedly be embarrassing, it does not impact his biographical core. It does not raise a serious risk to an important public interest. It does not reach the “high bar” established in Sherman Estate and the authorities cited therein.

The interests of the Applicant engaged in this case are purely private and personal. [ 54 ] This application deals with a civil action as opposed to a criminal proceeding, and the Intervener is a non-party, however the three-part test in Sherman Estate expressly applies to all court files and to all types of proceedings in the court. In fact, in Sherman Estate the sealing orders were requested, in part, to protect the identity of non-parties.

I therefore propose to apply the test in Sherman Estate to the initial threshold question following the approach adopted by Adams, J. in R.R. [ 55 ] The evidence on this application establishes that the dissemination of the Intervener’s identity, together with the allegation that he committed a sexual battery and abused his power as a police officer, has caused him inconvenience, embarrassment and upset.

I am satisfied that if the open court principle is allowed to continue to operate it may result in further consequences of the same kind. [ 56 ] I am unable to conclude however that publication of the Intervener’s identity, together with the allegation that he committed a sexual battery and abused his power as a police officer, will result in the psychological impact on the Intervener and his family members claimed in the application. [ 57 ] When this court considers applications for a publication ban on the identity of persons who allege they were subjected to sexual assaults, information which Sherman Estate suggests may be sufficiently sensitive to justify an exception to the open court principle, evidence of psychological impact on the applicant from an independent and qualified person is still required.

No such evidence has been submitted here. [ 58 ] The assertions of the Intervener cannot be relied upon as evidence to establish that psychological harm has resulted and will result to the Intervener and to his family from the publication of his identity in conjunction with the allegations. The Intervener is not independent and has no training which qualifies him to speak to the psychological harm that might flow from the publication of the information.

I further do not accept his assertion that any psychological and emotional harm is compounded because the Intervener is a non-party and is unable to defend himself. The Intervener has the ability to take steps to defend himself in this civil action. [ 59 ] In terms of the privacy concerns relied upon by the Intervener I find that the information that would be disseminated by the operation of the open court principle is his identity in conjunction with the allegation he is a person who has committed civil wrongdoing while on duty and abused his power as a police officer.

I find that the impact of the publication of the identity of the Intervener, in conjunction with these allegations, amounts to inconvenience, embarrassment and potential loss of reputation associated with being named in a civil action as an alleged wrongdoer. [ 60 ] The information in question may be embarrassing and potentially damaging to his reputation but it is not sufficiently sensitive and intimate information about the Intervener that can be said to go to his biographical core such that there is a serious risk that its

dissemination would threaten the dignity of his person . The Protection of the Innocent [ 61 ] The Intervener’s brief argues that the “protection of the innocent” from the allegations in the Statement of Claim is a societal value of such importance that it may justify overriding the principle that the business of the courts must be open to the public. [ 62 ] Prior to Sherman Estate “the protection of the innocent from unnecessary harm” was recognized as a ground to grant a publication ban protecting the identity of defendants and non-parties in civil cases involving allegations of sexual assault.

In particular, in two British Columbia cases referred to me, a publication ban was ordered on the identity of affected persons because they had not been charged with sexual assault and, based on the serious nature of the unproven allegations, they had shown they would suffer irreparable harm to their reputations in the local community if a publication ban was not ordered (see: Doe v. A.B ., at paragraphs 41-50 ; G. (B.) v. British Columbia , 2002 BCSC 1417 , at paragraphs 24 and 38 ). [ 63 ] Applying the same approach adopted in Doe v.

A.B . , the Intervener argues that the evidence shows he will unjustly suffer irreparable harm to his reputation due to the serious nature of the untested allegations set out in the civil claim and he should be entitled to a publication ban. [ 64 ] In Doe v. A.B . , the court concluded that dissemination of the name of the affected person, the defendant, posed “a serious risk to the administration of justice”, applying the two-part “ Dagenais/Mentuck ” test. The test was stated at paragraph 7:

a) Whether the orders sought by the applicant are necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and

b) Whether the salutary effects of the orders sought outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the rights of the litigants to a fair and public trial, and the efficacy of the administration of justice. [ 65 ] The “ Dagenais/Mentuck ” test has now been replaced by the restated three-part test in Sherman Estate which requires any person asking the court to exercise discretion in a way that limits the open court principle to establish all three elements of that test.

More importantly however, when the court in Doe v. A.B . reached its conclusion, it did not have the benefit of the development of the law in Sherman Estate locating the concept of privacy in the open court jurisprudence. [ 66 ] In my view Sherman Estate has now settled the question of when the privacy concerns of an affected person can amount to a valid important public interest sufficient to override court openness.

The law is that an exception to the open court principle on the basis of protection of privacy may only be made where a narrower dimension of personal privacy, the protection of human dignity, is placed at serious risk by reason of the dissemination of sufficiently sensitive information. Furthermore, this public interest must be understood as only applying in limited cases in order to protect the open court principle ( Sherman Estate , paragraph 63 ). [ 67 ] A close reading of the decision in Doe v.

A.B . shows that the conceptual and evidentiary basis for the Defendant’s application for anonymization and a publication ban is similar to the Intervener’s application (and that of the applicant in R.R. ). In effect, the orders sought in Doe v. A.B . were directed at another aspect of privacy, the protection of the Defendant’s reputation. The decision did not however consider the relevant public interest in the protection of human dignity . [ 68 ] As I stated, the approach adopted by the court in Doe v.

A.B . to grant a publication ban on the identity of the Defendant did not have the benefit of the framework and the ratio in Sherman Estate . I therefore decline to follow Doe v. A.B . [ 69 ] The conclusion I have reached on the first stage of the Sherman Estate analysis is that the Intervener has not shown that court openness poses a serious risk to an important public interest. This finding disposes of the application.

The Second Stage – Is the Order Necessary to Prevent the Serious Risk? [ 70 ] Given my conclusion on the first stage of the test, I do not need to consider whether a publication ban would be necessary to prevent the serious risk to an important public interest.

I will however briefly address the Intervener’s submission that the publication ban should remain in effect even if the court made a factual finding that he had committed the sexual battery in June 2014. [ 71 ] Sherman Estate provides that the three-part discretionary test to limit court openness is designed and structured to protect the open court principle (see: Sherman Estate , paragraph 39 ).

This is consistent with the cautionary note sounded by Kasirer, J. that the public interest in the protection of dignity must be understood as only applying in limited cases, again in order to protect the open court principle. [ 72 ] The second stage of the test in Sherman Estate focuses on the necessity of the order which I find must include ensuring that the scope of the order goes no further than is necessary to prevent the serious risk to an important public interest.

An order for a publication ban that would survive a finding that the Intervener had committed the sexual battery in June 2014 would be inconsistent with the premise of the Intervener’s application, his innocence of the allegations, and would be unnecessary to protect the dignity of the Intervener. The Third Stage – Do the Benefits of the Order Outweigh its Negative Effects? [ 73 ] Much of the ruling in Sherman Estate is focused on the first stage of the analysis and clarifying what is required to be shown for an applicant to pass the initial threshold of showing a serious risk to an important public interest.

The third stage presents a final barrier for the Intervener to overcome by showing that the positive benefits of the order outweigh its negative effects. [ 74 ] Under the third stage of the test Kasirer, J. confirmed that the public interest in important and legally relevant information

being aired in open court may overcome any concern for the privacy interests in the same information, even where its dissemination threatens the dignity of a person ( Sherman Estate , paragraph 106 ) . [ 75 ] The pleadings allege civil wrongdoing by the Intervener that is said to have occurred while he was on duty and engaged in the duties of a police officer imposed by statute and common law. The wrongdoing is alleged to have been initiated by the Intervener in the George Street area of St.

John’s, well-known for its number of licensed establishments and its festivals, and to have been premeditated. [ 76 ] The Plaintiff alleges that the RNC and the Defendant knew or ought to have known about the Intervener’s conduct by June 2014. The Defendant is alleged to be vicariously liable for the sexual battery of the Plaintiff because, possessed of that knowledge, both the RNC and the Defendant failed to take steps to prevent the sexual battery of the Plaintiff.

If this did occur, it placed members of the public at risk. [ 77 ] The administration and supervision of our police force is of general public interest. The identity of the Intervener is important and legally relevant to the allegation that the RNC and the Defendant knew or ought to have known about the Intervener’s conduct by June 2014. A publication ban would prevent the press from providing reports about this civil action that included the identity of a central figure. It would also discourage persons with information about these or similar allegations from coming forward.

A publication ban will therefore have serious negative effects. [ 78 ] The positive benefits of a publication ban for the Intervener are clear. The order would bring an immediate end to further risks to the Intervener’s privacy interests. The information the ban would cover is not however about the Intervener’s conduct in his private life. The information is about the conduct of a police officer while on duty, and while his privacy interests are significant, they are less so.

I find that this is a relevant factor to be considered in weighing the benefits of the order. [ 79 ] In a similar vein, the British Columbia Court of Appeal considered whether the prejudice to a police officer as an innocent person within the meaning of s. 487.3(2) (

a) of the Criminal Code outweighed the public interest in having access to edited materials from an information to obtain a search warrant. The warrant in that case was executed at the place of work of the officer for an investigation into allegations of breach of trust (see: Phillips v. Vancouver Sun , 2004 BCCA 14 ). [ 80 ] While no charges were ever laid against the police officer, the court emphasized that the privacy interests of the police officer were insufficient to overcome the significant public interest in knowing whether any evidence of breach of trust had been obtained under the search warrant.

The court stated that the result would have been the same if the test for a common law publication ban were applied. [ 81 ] This civil action involves matters of significant public interest and concern. I have found that a publication ban will have significant negative effects. The benefit of the publication ban is limited to preventing further interference with the personal privacy interests engaged by the Intervener.

I find that his privacy interests in the information are insufficient to overcome the negative effects of a publication ban. [ 82 ] The application would also fail at the third stage of the test in Sherman Estate . DISPOSITION [ 83 ] The application is dismissed. [ 84 ] The Intervener shall pay the Plaintiff’s costs, for one counsel, taxed on Column 3. The Defendant did not request and is not awarded costs. _____________________________ Peter A. O'Flaherty Justice