R.R. Applicant And: Her Majesty the Queen in right of Newfoundland v. Labrador, 2022 NLSC 46

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R.R. v. Newfoundland and Labrador , 2022 NLSC 46 Date : March 23, 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 Majesty the Queen in right of Newfoundland and Labrador Respondent AND: THE CANADIAN BROADCASTING CORPORATION AND CTV NEWS, A DIVISION OF BELL MEDIA INTERVENERS/ RESPONDENTS Before: Justice James P. Adams Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: February 24 and 25, 2022

Summary:

R.R. was charged with several counts of sexual assault against the same complainant, including on one occasion when she was a minor. R.R. applied for a common law publication ban to prevent the publication of his name or any information which might lead to hisidentity on the basis that it would, among other things, deprive him of the presumption of innocence, negatively affect his reputation andundermine his dignity. He conceded that the ban could be lifted if he was convicted. The court issued an interim ban. The Crown was added as the Respondent by order of the court.

CBC and CTV intervened to oppose the application on the basis that apublication ban would be an unwarranted interference with the open court principle and freedom of the press. The Crown opposed theapplication on the basis that it would be an unwarranted interference with the open court principle. Held: The Applicant did not meet the test for a common law publication ban. His engaged interests amounted to no more than personaland professional embarrassment and possible loss of business.

These concerns did not meet the high bar of constituting an importantpublic interest to which court openness would pose a serious risk. The Application was denied. 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 Deidre D. Badcock Christine Lonsdale Appearing on behalf of the Interveners Pippa Leslie William Main Authorities Cited: CASES CONSIDERED: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23; Sherman Estate v. Donovan, 2021SCC 25; Dagenais v.

Canadian Broadcasting Corp., (SCC), [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76; SierraClub of Canada v. Canada (Minister of Finance), 2002 SCC 41; R. v. Oakes, (SCC), 1986 CarswellOnt 95; R. v. W.(L.F.) (1997), (NL CA), 119 C.C.C. (3d) 97, 155 Nfld. & P.E.I.R. 115 (Nfld. C.A.); Canadian Broadcasting Corp.,Re, 2005 NLTD 126; Ottawa Citizen Group Inc. v. Ontario (2005), (ON CA), 201 O.A.C. 208, 75 O.R. (3d) 590;Globe & Mail v. R., 2011 ABQB 363; Phillips v. Vancouver Sun, 2004 BCCA 14; R. v. Friesen, 2020 SCC 9; Douez v. Facebook, Inc.,2017 SCC 33; Canadian Broadcasting Corp. v.

Manitoba, 2021 SCC 33; A Lawyer v. The Law Society of British Columbia, 2021 BCCA284; John Doe (Re), 2020 NLSC 6; R. v. Several Unnamed Persons, (ON SC), 1983 CarswellOnt 1393, 44 O.R. (2d)81 (H.C.); Frank v. Legate, 2015 ONCA 631; Reference re Subsection 18.3(1) of the Federal Courts Act, 2021 FC 723; Google Inc. v.Equustek Solutions Inc., 2017 SCC 34; Teksavvy Solutions Inc. v. Bell Media Inc., 2021 FCA 100; A.B. (Litigation Guardian of) v. BraggCommunications Inc., 2012 SCC 46; Edmonton Journal (The) v.

Alberta (Attorney General), (SCC), [1989] 2 S.C.R.1326 STATUTES CONSIDERED: Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to theCanada Act 1982 (U.K.), 1982, c. 11; Criminal Code, R.S.C. 1985, c. C-46; Personal Information Protection and Electronic DocumentsAct, S.C. 2000, c. 5

RULES CONSIDERED: Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D OTHER: Samantha K. Brooks & Neil Greenberg “Psychological impact of being wrongfully accused of criminal offences: A systematic literature review ” (2021) 61(1) Medicine Science and the Law at 44; Ros Burnett, Carolyn Hoyle & Naomi-Ellen Speechley “The Context and Impact of Being Wrongly Accused of Abuse in Occupations of Trust” (2017) 56 The Howard Journal 176-197; “Draft OPC Position on Online Reputation”

(2018) Office of the Privacy Commissioner Canada REASONS FOR JUDGMENT Adams, J. : INTRODUCTION [ 1 ] This is an application by R.R. for a publication ban respecting his name or any information which could lead to the disclosure of his identity. [ 2 ] R.R. has been charged with several counts of sexual assault involving the same complainant (one of which is in respect of a time when the complainant was 12 years of age) and one count of sexual interference. background [ 3 ] In or about April 2021 R.R. was contacted by the Royal Canadian Mounted Police (“RCMP”) to advise him that the charges would be laid and inviting him to provide a statement.

R.R. gave a statement and strongly professed his innocence. In mid-May 2021 the RCMP proceeded to lay 2 charges of sexual assault and 1 of sexual interference against the Applicant. In early July 2021, in an effort to keep his name from becoming public, R.R. applied to this court by way of Originating Application ex parte for a publication ban on his name and a sealing order respecting the information in the file. The Chief Justice ordered that the matter be converted to an inter partes application and that the Crown be named as Respondent.

On or about 7 July 2021, Burrage, J. issued an interim order prohibiting the publication of R.R.’s name or any information which could identify him until further order of the court and a sealing order, among other things. [ 4 ] The hearing of the application for publication ban was set for 29 October 2021. Notice was given to the media pursuant to the court’s protocol in that regard. The Canadian Broadcasting Corporation (“CBC”) indicated it intended to oppose the ban.

Later CTV News, a division of Bell Media (“CTV”) joined the CBC in its opposition to the ban. [ 5 ] Meanwhile, in addition to his own affidavit in support of the application, R.R. filed affidavits of Rachelle Bennett, a legal assistant with the law firm Henein Hutchison LLP and Matthew Earle, President of Reputation.ca. [ 6 ] CBC and CTV (hereinafter sometimes referred to as “the media”) indicated they would be opposing the publication ban. The hearing was set over to 23 November 2021 and it was ordered that CBC and CTV be given access to the sealed file.

At the hearing on 23 November, CBC and CTV indicated they would be objecting to the admissibility of the affidavits proffered by R.R. A hearing date was set for that application on 11 January 2022. [ 7 ] On 7 December 2021 R.R. was charged with two additional counts of sexual assault relating to the same complainant. On 22 December 2021 the interim publication ban was continued until further Order of the Court. On 11 January 2022, following oral argument, I allowed in part the application to strike the admissibility of the affidavits proffered by R.R. with reasons to follow.

I admitted the affidavit of R.R. with the exception of paragraphs 13 and 14 which we were struck. I allowed the affidavit of Rachelle Bennett together with the exhibits attached. I ruled the affidavit of Matthew Earle was inadmissible as it constituted expert evidence which had not been properly presented. I granted R.R. leave to resubmit the Earle affidavit as an expert affidavit subject to the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D and the legal test on admissibility of expert evidence.

I have issued reasons for that decision. [ 8 ] CBC and CTV indicated they intended to cross-examine R.R. and Mr. Earle on their respective affidavits at the hearing of the application. The application for a publication ban was heard on 24 and 25 February 2022. This is my decision on that application. issue Should a publication ban on the name and identity of R.R. be issued? [ 9 ] For the reasons which follow, the application for a publication ban is denied. All interim publication bans and the sealing

order are vacated. the evidence [10] The Applicant submitted an affidavit in support of his application. He is a 70 year old prominent lawyer who has carried on apractice for over 30 years in a semi-rural area of the province, not far from St. John’s. He has been married for 49 years, has two adultchildren and four grandchildren. He claims to have a thriving law practice which employs two associate lawyers and other staff whoselivelihoods depend on the viability of his law firm. He is nearing retirement.

He believes that publication of his name in connectionwith the outstanding charges would have a devastating impact on his practice and that of his associates and would virtually end hiscareer. He says the publication of his name in relation to the charges will have a “significant social, psychological and emotionalimpact” on him and cause irreparable harm to his reputation, particularly since one of the charges relates to a 12 year old girl. (Affidavitof R.R., paragraph 20) [11] R.R. was cross-examined on his affidavit. He admitted that he has no knowledge of technology.

His firm does not have awebsite and he does not market his legal business on the internet. He said everyone at his firm is aware of the charges as he broughtthem all together to advise them of it.

R.R.’s family is also aware of the charges. [12] R.R. admitted that he has previously been found guilty of four instances of professional misconduct: threatening a criminalprosecution in order to gain an advantage and breaching an undertaking to another solicitor; deliberately misleading the lawyer of ashareholder of a company; carrying on a sexual relationship with an adult client and other questionable conduct; and an improprietyinvolving a real estate transaction. He acknowledged that all of these instances are available to the public and that they are known to hisfamily and law associates.

He said that one of the reasons for the application for a publication ban is to save his family fromembarrassment, as well as to protect his reputation and his business. He said there were no publication bans issued in any of the LawSociety disciplinary hearings and decisions. The dates of these findings of professional misconduct range from 1991 until the latest in2017. [13] The Rachelle Bennett affidavit offered a number of articles relating to the damage arising from wrongful convictions, the lawof defamation and public opinion surveys of Canadians on the issue of sexual assault.

I admitted her affidavit and exhibits as socialcontext evidence. [14] Following my initial decision that Matthew Earle’s affidavit was inadmissible since it constituted expert evidence which hadnot be presented in accordance with the Rules, Mr. Earle provided an expert’s affidavit on behalf of R.R. Mr. Earle was cross-examinedon his qualifications as an expert, as well as on the substance of his affidavit. Towards the end of his testimony, the parties agreed that(subject to a couple of deletions from his affidavit) Mr.

Earle could be qualified to give opinion evidence in the areas of “onlinereputation management” and “search engine optimization.” Subject to the deletions in his affidavit, I so qualified him and admitted hisamended affidavit into evidence. In light of the agreement of counsel it was not necessary to complete a formal assessment under theanalysis in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23. However, I am satisfied that the affidavit meetsthe test. [15] Mr. Earle explained that his expertise is in getting “the most or the least eyeballs” on an internet search.

He explained how thealgorithms at the various websites rank stories about an individual. He said the services his company offers are time consuming andcostly. He estimated that less than 20 percent of Canadians could afford his services and there is no guarantee of success. He said thateven if a particular search moves down the Google ranking, he said the first 20 hits are what are important.

The source information ofthe search never goes away. [16] Despite his testimony that even with the benefit of his services, there is no guarantee of success, nevertheless, his website doesoffer a guarantee in some areas that he can rehabilitate a person’s reputation which may have been tarnished by negative news stories orother postings on the internet. He clarified this by saying that the types of cases in respect of which he can offer a guarantee relate tocompanies they pay to remove the stories. He said this doesn’t work with mainstream media stories.

He said allegations of sexualmisconduct tend to rank high in an internet search and it is these types of search results his company tries to fix. Mr.

Earleacknowledged that he has no experience in the areas of psychology or law. [17] The media also submitted an affidavit of Christina Vincent, a law clerk with McCarthy Tétrault LLP, counsel for theInterveners dated 8 February 2022 enclosing a news report showing that the Crown had withdrawn certain charges against the Applicant,a number of reports from the Law Society of Newfoundland and Labrador relating to several professional misconduct charges against theApplicant, the journalistic and ethical standards practices of CBC and CTV and a couple of articles from academic journals respectingthe effects of pre-trial publicity and the Canadian perspective on the “right to be forgotten.” The test for a restriction on the open court principle such a publication ban [18] This case brings into sharp focus the tension between the principle of open courts and the issuance of common law restrictionson that principle by means of such things as a publication ban. [19] In the recent decision in Sherman Estate v.

Donovan, 2021 SCC 25 (“Sherman Estate”) the Supreme Court of Canada restatedand clarified the law respecting common law orders restricting the open court principle. The court reaffirmed in paragraph 37 that “courtproceedings are presumptively open to the public.” Court openness is protected by

section 2(

b) of the Canadian Charter of Rights andFreedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter”). The courtreiterated that the right of the media to report on court proceedings forms a part of court openness. It is the only practical way mostmembers of the public can be made aware of proceedings in court (paragraph 30). While limits on court openness have been recognized,they have been allowed only sparingly: Dagenais v. Canadian Broadcasting Corp., (SCC), [1994] 3 S.C.R. 835 at 878;R. v. Mentuck, 2001 SCC 76 at paras. 32-39; and Sierra Club of Canada v.

Canada (Minister of Finance), 2002 SCC 41 at para. 56. [20] The court recognized that personal privacy may be considered in certain circumstances – where it is an affront to a person’sdignity – as representing an important public interest which may form the basis of a limit on court openness (Sherman Estate, paragraph

7 ).

Nevertheless, the court also acknowledged that any court proceeding will result in the loss of privacy of the litigants to some degree which may result in “inconvenience, even in upset or embarrassment … Accordingly, upholding the presumption of openness has meant recognizing that neither individual sensibilities nor mere personal discomfort associated with participating in judicial proceedings are likely to justify the exclusion of the public from court.” ( Sherman Estate , paragraph 31 ) [ 21 ] The court noted at paragraph 34 that for personal privacy to overcome the open court principle, it must scale a high bar: 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 . [ 22 ] Prior to Sherman Estate , the test for discretionary limits on court openness was considered to have two steps: necessity and proportionality.

At paragraph 38 of Sherman Estate , the court restated the test as having three core prerequisites: 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 ). [ 23 ] The court stated further at paragraphs 63 and 84: 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 ). These principles do not preclude recognizing the public character of a privacy interest as important when it is related to the protection of dignity.

They merely require that a serious risk be shown to exist in respect of this interest in order to justify, exceptionally, a limit on openness, as is the case with any important public interest under Sierra Club . As Professors Sylvette Guillemard and Séverine Menétrey explain, [TRANSLATION] "[t]he confidentiality of the proceedings may be justified, in particular, in order to protect the parties' privacy ....

However, the jurisprudence indicates that embarrassment or shame is not a sufficient reason to order that proceedings be held in camera or to impose a publication ban" ( Comprendre la procédure civile québécoise (2nd ed. 2017), at p. 57). 84 Finally, and as discussed above, individual sensitivities alone, even if they can be notionally associated with "privacy", are generally insufficient to justify a restriction on court openness where they do not rise above those inconveniences and discomforts that are inherent to court openness ( MacIntyre , at p. 185).

An applicant will only be able to establish that the risk is sufficient to justify a limit on openness in exceptional cases, where the threatened loss of control over information about oneself is so fundamental that it strikes meaningfully at individual dignity.

These circumstances engage "social values of superordinate importance" beyond the more ordinary intrusions inherent to participating in the judicial process that Dickson J. acknowledged could justify curtailing public openness (pp. 186- 87). positions of the parties [1] Applicant [ 24 ] The Applicant submitted that the test to be applied is that set out in Sherman Estate . He submitted that he has met the test on all three elements.

He argued that there are three public interests at serious risk if the publication ban is not granted: the presumption of innocence, his privacy insofar as it affects his dignity and the reputational interests of the legal profession. [ 25 ] He submitted that while historically restrictions on the open court principle have been granted sparingly, the explosion of the internet has changed the ground rules of how information is disseminated and the permanence of its availability to the average person.

The internet never forgets so a person can be subjected to public scorn and loss of reputation, both personally and professionally, with no meaningful way of protecting oneself. [ 26 ] The Applicant entered his own affidavit in support of his position in which he set out some of his personal information, as well as his professional background. He was cross-examined by counsel for the media. In addition, the Applicant provided a significant number of published articles in support of his position.

The Applicant also submitted an affidavit from Matthew Earle, a specialist in online reputation management and search engine optimization. Mr. Earle owns a company called Reputation.ca. He explained how difficult and costly it is to rehabilitate one’s online reputation, particularly involving allegations of sexual misconduct.

He was cross- examined by CBC and CTV’s counsel. [ 27 ] The Applicant also submitted that nothing short of a publication ban on his name and any information which could lead to the disclosure of his identity would be sufficient to avoid this serious risk. [ 28 ] Finally, the Applicant submitted that the benefits of the order outweigh any negative consequences. He argued that the publication ban requested is the least intrusive common law restriction on the open court principle. It only relates to publication of information leading to the disclosure of his identity.

It does not seek to restrict access to the court by the public, including the media. He stated that the media would be free under the order to publish information not covered by the ban. The ban being sought is also time limited so that if he is convicted, it would be lifted and the media would be free to publish all information respecting the charges. [ 29 ] The Applicant recognized the importance of the reporting of sexual offences.

He submitted, however, that the significance of sexual offences demanded that they be resolved through the courts and not in the media where an accused’s reputation could be permanently damaged as a result of a false allegation. The Crown [ 30 ] The Crown did not initially take a position respecting the application for a publication ban, leaving the matter to be defended by the media.

Ultimately, however, the Crown filed a brief and made submissions. [ 31 ] The Crown submitted that the Applicant has not identified a public interest which requires the imposition of an extraordinary remedy such as a publication ban on the Applicant’s identity. The Crown argued that it is for Parliament to invoke its constitutional authority to address the issues raised by the Applicant, not the court. The Crown referred to several instances in the Criminal Code , R.S.C. 1985, c. C-46 where Parliament has seen fit to impose publication bans.

They all involve protection of the identity of the victim of a sexual offence, not the accused. And even in

section 486.4 of the Criminal Code , where the identity of the accused is protected from publication, it is still only available in circumstances where the disclosure of the identity of the accused may lead to the disclosure of the identity of the victim. [ 32 ] The Crown denied that any of the public interests identified by the Applicant are at risk. The presumption of innocence is enshrined in the Charter and applies from the beginning to the end of every criminal procedure. But it is not designed to regulate the reaction of members of the public outside of the operations of the criminal justice system.

The presumption of innocence guarantees the Applicant a fair trial before an impartial court but does not protect the Applicant from public embarrassment. [ 33 ] In respect of the Applicant’s claim that the publication of his identity would unduly invade his privacy and dignity, the Crown submitted that if a ban were issued in this case, it would mean that all persons charged with virtually any criminal offence could seek the same protection.

The Crown submitted that the disclosure of the identity of the Applicant and any embarrassment or inconvenience visited on him would be purely personal and does not rise to the level of an important public interest.

Furthermore, submitted the Crown, the disclosure of the Applicant’s identity is not information relating to his biographical core and is therefore not protected by the Sherman Estate formula. [ 34 ] The Crown submitted that the law does not recognize special treatment for lawyers so the protection of the legal profession is not something the court should contemplate in the context of someone charged with a criminal offence. Since the Applicant has not identified a serious public interest at risk, says the Crown, there is no need to address the issue of the necessity of the publication ban.

As well, the Crown submitted that the negative effects of a ban far outweigh any benefits to the Applicant which would be speculative in any event. CBC/CTV [ 35 ] CBC and CTV were granted standing as interveners to address the issues raised by the Applicant’s application. They filed a brief and an affidavit with attachments of published articles showing that positive references to a person on the internet may outweigh negative references and that reputation management tools are available in Canada.

They also filed information relating to several charges of professional misconduct in which the Applicant was found guilty by the Law Society of Newfoundland and Labrador. [ 36 ] CBC and CTV submitted that the Applicant’s application for a publication ban fails the Sherman Estate test at every stage. They agree that it is the Sherman Estate test for restriction on the open court principle that applies. They say generally that criminal proceedings cannot be meaningfully public without access by the media and the media’s ability to publish reports on the proceedings.

This is so, they say, because realistically most members of the public do not have the option of physically attending a court hearing and reports by the media are their way of participating and being informed. [ 37 ] As did the Crown, the media submitted that the Criminal Code provides a number of exceptions to the open court principle but the Applicant’s request doesn’t fit under either of them. [ 38 ] First, says the media, the Applicant has not identified a serious risk to an important public interest on the facts of this case.

They say that the Applicant’s submissions turn on purely private personal interests which cannot justify a publication ban. Personal embarrassment or professional discomfiture do not rise to the requisite level. They say that the three public interests identified by the Applicant: the presumption of innocence, the Applicant’s privacy insofar as it effects threats to his dignity and the reputational interests

of the justice system, particularly the legal profession, do not merit the relief requested by the Applicant. [39] In respect of the presumption of innocence, CBC and CTV say that, while it is recognized as an important public interest, it isnot threatened by the open court principle. If anything, they say, it is enhanced by it. The open court principle ensures that criminalproceedings are conducted in public. They say that the presumption of innocence is not engaged on the facts of this case as theApplicant will receive the benefit of it throughout.

However, the presumption of innocence does not operate to protect an accused frompublic opinion. On the other hand, they say, the open court principle and the rights of the media specifically are protected by section2(

b) of the Charter. The Applicant has not argued that his fair trial rights would be affected. [40] CBC and CTV submitted that most members of the public understand the difference between an allegation of sexualmisconduct and a conviction for it. They say that the concept of privacy as dignity is not engaged on the facts here. Simply publishinghis name and the fact he has been charged with sexual offences do not impact the Applicant’s biographical core as required by theauthorities. There is nothing exceptional about the Applicant or the charges he faces.

If the ban were to be granted, they contend, theopen court principle would be significantly negatively impacted as virtually every accused person would be able to apply for such a ban.

This would affect the reporting of sexual misconduct as the average person would not be aware that the Applicant has been charged andother persons who might have information about the charges or be themselves victims would not know to come forward. [41] The media say that some degree of personal embarrassment and loss of privacy is inevitable in every court proceeding butthose are private interests that do not rise to the level of an important public interest.

Likewise, they submit that no effect should begiven to the Applicant’s submission that the publication of his identity would negatively affect the legal profession. To impose a ban onthis ground would seriously undermine the public’s confidence in the administration of justice. [42] Even if the Applicant were to be successful in establishing the serious risk to an important public interest, CBC and CTVsubmitted that the Applicant failed to establish that the issuance of such a ban is necessary. They say the laws of defamation areavailable to protect the Applicant against the publication of false statements.

As well, say the media, the average person understands thedifference between a person who is charged with an offence and one who has committed an offence. They say that the test should not bebased on a person who is overly fragile but one who has common sense and is reasonably thoughtful and well informed. [43] CBC and CTV also submit that the Applicant is incorrect when he says that there is no way to remove harmful informationfrom the internet. They say de-indexing (as it is sometimes called) while controversial, is available in Canada, contrary to thesubmissions of the Applicant.

The process was specifically recognized by the Privacy Commissioner of Canada in a 2018 paper and hasbeen used in several Canadian cases. [44] Finally, CBC and CTV say that the deleterious effects of a publication ban outweigh its benefits – the third branch of theSherman Estate test. As already stated, they say a ban could prevent individuals with relevant information from hearing about a case andcoming forward with new information. A ban would also restrict the public from knowing how a particular individual has been treatedby the criminal justice system.

The open court principle is the only guarantee that individuals are treated fairly and to ensure that ourcourts operate with integrity and dispense justice in an unbiased manner. The court, says the media, has to focus on the long termimplications of issuing a ban, not just the effects on the individual requesting it. Justice must not only be done, but must be seen to bedone. analysis [45] In my respectful view the Applicant has failed at the first stage of the Sherman Estate test. He has failed to identify a seriousrisk to an important public interest posed by the open court principle.

The interests he has identified are personal in nature: the right toprivacy, potential embarrassment to him, his family and his law firm, and potential loss of business by way of referrals. Indeed, this isrecognized in Sherman Estate at paragraph 31: 31 … the jurisprudence acknowledges that some degree of privacy loss — resulting in inconvenience, even in upset or embarrassment— is inherent in any court proceeding open to the public.

Accordingly, upholding the presumption of openness has meant recognizingthat neither individual sensibilities nor mere personal discomfort associated with participating in judicial proceedings are likely to justifythe exclusion of the public from court. … (authorities omitted) [46] The court in Sherman Estate explained that the open court principle is fundamental to our justice system and is protected undersection 2(

b) of the Charter. In respect of discretionary restrictions on court openness, the court stated at paragraph 39: 39 The discretion is structured and controlled in this way to protect the open court principle, which is understood to beconstitutionalized under the right to freedom of expression at s. 2(

b) of the Charter (New Brunswick, at para. 23). Sustained by freedomof expression, the open court principle is one of the foundations of a free press given that access to courts is fundamental tonewsgathering. This Court has often highlighted the importance of open judicial proceedings to maintaining the independence andimpartiality of the courts, public confidence and understanding of their work and ultimately the legitimacy of the process (see,e.g., Vancouver Sun, at paras. 23-26).

In New Brunswick, La Forest J. explained the presumption in favour of court openness had become"'one of the hallmarks of a democratic society'" (citing Re Southam Inc. and The Queen (No.1), (1983), (ON CA), 41O.R. (2d) 113 (C.A.), at p. 119), that "acts as a guarantee that justice is administered in a non-arbitrary manner, according to the rule oflaw ... thereby fostering public confidence in the integrity of the court system and understanding of the administration of justice" (para.22).

The centrality of this principle to the court system underlies the strong presumption — albeit one that is rebuttable — in favour ofcourt openness (para. 40; Mentuck, at para. 39). [47] As already stated, while Sherman Estate formulated a three part test to replace the earlier two part test of necessity andproportionality to determine when it might be justifiable to restrict court openness, the court was careful to emphasize that it was notaltering the essence of the earlier authorities (Sherman Estate, paragraph 38). I will address each stage of the new three part test, asrequired

Stage One [48] Stage one of the test requires a person seeking to restrict court openness (for example, by way of a publication ban) to identifyan important public interest which would be put at serious risk if the open court principle were not restricted in the manner requested.

The Applicant identified three public interests he says were so put at risk: the presumption of innocence, the Applicant’s privacy insofaras threats to his privacy present threats to his dignity; and the reputational interests of justice system participants, particularly the legalprofession. (Applicant’s Factum, paragraph 21) Presumption of Innocence [49] There can be no dispute that the presumption of innocence is as described in R. v.

Oakes, (SCC), 1986CarswellOnt 95 at para. 32, “a hallowed principle lying at the very heart of criminal law.” The court stated: 32. … The presumption of innocence protects the fundamental liberty and human dignity of any and every person accused by thestate of criminal conduct. An individual charged with a criminal offence faces grave social and personal consequences, includingpotential loss of physical liberty, subjection to [page120] social stigma and ostracism from the community, as well as other social,psychological and economic harms.

In light of the gravity of these consequences, the presumption of innocence is crucial. It ensures thatuntil the State proves an accused's guilt beyond all reasonable doubt, he or she is innocent. This is essential in a society committed tofairness and social justice. The presumption of innocence confirms our faith in humankind; it reflects our belief that individuals aredecent and law-abiding members of the community until proven otherwise. [50] The Applicant submitted that the stigma associated with being convicted of a sexual offence should not be borne by an accusedperson. He referred to R. v.

W. (L.F.) (1997), (NL CA), 119 C.C.C. (3d) 97, 155 Nfld. & P.E.I.R. 115 (Nfld. C.A.). However, the comments by Marshall, J.A. in that case were in the context of a sentencing decision, and are not particularly relevant to aperson simply charged with an offence. [51] The presumption of innocence does not protect an accused from the vagaries of public opinion. It applies to the relationshipbetween the state and the accused in the criminal process and ensures the accused a fair trial.

The Applicant has not asserted that his fairtrial rights would be at risk if a publication ban were not imposed. [52] As pointed out by CBC and CTV, the

section 7 and

section 11 Charter rights protecting the presumption of innocence speak tothe accused’s right to be “presumed innocent until proven guilty according to law in a fair and public hearing by an independent andimpartial tribunal” (section 11(d)) and not to be deprived of “life, liberty and security of the person … except in accordance with theprinciples of fundamental justice” (section 7). These rights are not affected by the absence of a publication ban. [53] On the other hand, a publication ban is a clear infringement on the open court principle embodied in the Charter right offreedom of expression set out in

section 2(

b) which encompasses the “freedom of the press and other media of communication.” [54] The Applicant placed considerable reliance on a case from this court: Canadian Broadcasting Corp., Re, 2005 NLTD 126 (“ReCBC”). In that case, a physician in a rural area of the Province had been charged with several sexual offences involving a patient. Thedoctor had previously been granted an ex parte order banning publication of his name. CBC applied to have the ban lifted which wasdenied.

At paragraphs 29 and 31 of that case, I stated: 29 There is no effective means of protecting the privacy interests of the unnamed person in this case short of banning the publicationof his name or information by which he might be identified. The stigma associated with a charge of sexual assault or related charges isobvious and especially in the case of a professional in a sensitive career such as medicine. … 31 The harm to the unnamed person's family of allegations of sexual assault are also obvious and require no real proof.

In a smalltown, such as the one in which the unnamed person practiced, the stigma attached to allegations of sexual assault against a physicianwould be difficult if not impossible to erase even if they were later proved to be untrue. It cannot be presumed that every person whoheard of the initial charges would hear of the later exoneration. And despite the constitutional right to the presumption of innocence, inmy respectful view it is human nature for some people to believe that there must be some element of truth to such allegations or theywould not have been made.

The damage to one's reputation is incalculable. One cannot unscramble an egg. [55] In my respectful view, that case is distinguishable from the present case in several important ways. Firstly, it is distinguishableon its facts. In that case, at the time of hearing, the Crown had withdrawn or stayed all of the charges against the physician. There wasno ongoing criminal process and the charges would not be prosecuted: 43 In this case, however, the initial charges had been the subject of an earlier investigation by the police, the Crown and medicalauthorities and were found to be groundless.

A thorough police investigation determined that the initial complainant was completelyunreliable. Ultimately, the Crown stayed the charges. In the second indictment (involving the alleged attempted extortion) the Crownalso chose to stay the charges. The Crown withdrew the third indictment.

In my respectful view, this throws considerable doubt on thereliability of the more recent police investigation which led to these charges being laid. 44 … The Crown has reviewed the charges and has concluded that there is no basis to proceed with them. … [56] The facts in Re CBC were exceptional and this was a significant influence on the outcome to maintain the public’s confidencein the administration of justice. At paragraphs 34 - 35 and 46 I stated: 34 I acknowledge the point raised by counsel for the CBC that most, if not all, persons charged with offences at least initially profess

their innocence. The strength or weakness of a case should not be pre-judged. It is for the Court to decide the guilt of the person chargedafter all the evidence has been adduced. It is an unfortunate by-product of the criminal justice system that persons' names who areultimately found to be not guilty are published in the media. The CBC says that this is a regrettable price that we all must pay in order tomaintain confidence in the integrity of a completely open justice system. 35 There is strength in this argument.

However, on the peculiar facts of this case, particularly in light of the staying or withdrawal ofall the charges, it seems to me a particular affront to common sense and the proper administration of justice to conclude that theunnamed person's name must still be published. Whether the ex parte ban ought to have been issued initially is not really germane to thematter at this point. This is not an appeal of that decision. 46 … every case must be decided on its own merits.

The facts in this case are exceptional and I would not expect them to be repeatedoften. … [57] Another factor distinguishing Re CBC is that it was decided in 2005, well before Sherman Estate which refined the two-parttest relied on in that case, albeit not altering the essence of the earlier test. At the first stage of the current test, the Applicant for a banmust identify an important public interest being put at risk by court openness.

That was not the case in Re CBC which was groundedprincipally on the proper administration of justice. [58] The Applicant referred to other instances where publication bans had been imposed as well. There can be no doubt that anuanced

interpretation of the interaction between the open court principle and the presumption of innocence (expressed as privacy as it isby the Applicant) may lead to a publication ban or some other such limitation being granted. Indeed, this was recognized by Kasirer, J.in Sherman Estate at paragraph 31 where he stated: … “The right of privacy is not absolute; the open court principle is not withoutexceptions.” But as already stated, each case must be decided on its own facts and in context. [59] The Applicant also relied on the jurisprudence surrounding

section 487.3 of the Criminal Code which authorizes sealing ordersrelating to search warrants. He referred to Ottawa Citizen Group Inc. v. Ontario (2005), (ON CA), 201 O.A.C. 208,75 O.R. (3d) 590 and cases cited therein and Globe & Mail v. R., 2011 ABQB 363 in support of the proposition that persons named insearch warrants are to be considered “innocent persons” who are entitled to protection against disclosure of information used to obtainthe search warrants but which may disclose the identity of the persons who are the subject of the search warrants. [60]

Section 487.3 of the Criminal Code states in relevant part: 487.3

(1) On application made at the time an application is made for a warrant under this or any other Act of Parliament, an order underany of sections 487.013 to 487.018 or an authorization under

section 529 or 529.4, or at a later time, a justice, a judge of a superior courtof criminal jurisdiction or a judge of the Court of Quebec may make an order prohibiting access to, and the disclosure of, anyinformation relating to the warrant, order or authorization on the ground that (

a) the ends of justice would be subverted by the disclosure for one of the reasons referred to in subsection (2) or the information mightbe used for an improper purpose; and (

b) the reason referred to in paragraph (

a) outweighs in importance the access to the information.

(2) For the purposes of paragraph (1)(a), an order may be made under subsection (1) on the ground that the ends of justice would besubverted by the disclosure (

a) if disclosure of the information would … (iv) prejudice the interests of an innocent person; and (

b) for any other sufficient reason.

[ 61 ] I agree with counsel for CBC and CTV that the cases relied on by R.R. do not stand for the proposition that persons subject to a search warrant are automatically entitled to a publican ban by reason of being considered “innocent persons”. In Phillips v. Vancouver Sun , 2004 BCCA 14 , paragraph 66 , the BC Court of Appeal held that prejudice to the interests of an innocent person is but one factor to be considered in determining whether to issue a ban on the publication respecting the information contained in an application for a search warrant.

In Phillips , no charges had been laid against a police officer suspected of breach of his duty as a public officer but this was insufficient, despite his significant privacy interests, to overcome the open court principle and the media’s right to access the materials (paragraph 92). [ 62 ] The Applicant submitted that the stigma associated with an allegation of sexual assault will cause him to suffer consequences that should not adhere to a person presumed innocent. There is no doubt that an allegation of sexual assault may subject a person to public condemnation, particularly when it involves a child.

The affidavit of Rachelle Bennett referred to a number of articles in support of this, for example: • Samantha K.

Brooks & Neil Greenberg “Psychological impact of being wrongfully accused of criminal offences: A systematic literature review” (2021) 61(1) Medicine Science and the Law at 44 • Ros Burnett, Carolyn Hoyle & Naomi-Ellen Speechley “The Context and Impact of Being Wrongly Accused of Abuse in Occupations of Trust” (2017) 56 The Howard Journal 176-197 [ 63 ] This regrettable result has also been recognized in various judicial authorities as an unfortunate consequence of being caught up in the justice system (see for example, Sherman Estate , paragraph 31 ; R. v.

Friesen , 2020 SCC 9 , paragraph 90 ). [ 64 ] This stigma is exacerbated, submitted the Applicant, due to the ubiquity of the internet and social media which “never forgets”. The evidence of Matthew Earle was to this effect. See also Douez v. Facebook , Inc. , 2017 SCC 33 , paragraph 59 . [ 65 ] R.R. submitted that the dissemination of his identity in the absence of a publication ban would be an unacceptable invasion of his privacy as a person presumed to be innocent.

It would constitute an attack on his dignity which is recognized in Sherman Estate as an aspect of privacy which is worthy of protection as an important public interest which could be put at serious risk: Sherman Estate , paragraphs 33 and 76 . [ 66 ] As explained in Sherman Estate at paragraph 75 : 75 If the interest is ultimately about safeguarding a person's dignity, that interest will be undermined when the information reveals something sensitive about them as an individual, as opposed to generic information that reveals little if anything about who they are as a person.

Therefore the information that will be revealed by court openness must consist of intimate or personal details about an individual — what this Court has described in its jurisprudence on s. 8 of the Charter as the "biographical core" — if a serious risk to an important public interest is to be recognized in this context … [ 67 ] So while Sherman Estate recognized the protection of dignity as an important public interest, simple embarrassment or inconvenience of the type associated with any criminal charge is insufficient to warrant curtailment of the open court principle.

It is only where the information is so sensitive that it strikes at the person’s “biographical core” and its dissemination would put their privacy as therein understood at serious risk that it could be considered sufficient to warrant a restriction on court openness. [ 68 ] In order to be of such a type as to warrant the restriction on an open court it must reveal “something sensitive about them as an individual… of intimate or personal details about an individual” ( Sherman Estate , paragraph 75 ).

But as the court further stated in Sherman Estate at paragraph 75 : 75. … Dignity transcends personal inconvenience by reason of the highly sensitive nature of the information that might be revealed…. The presumption of openness means that mere discomfort associated with lesser intrusions of privacy will generally be tolerated.

But there is a public interest in ensuring that openness does not unduly entail the dissemination of this core information that threatens dignity — even if it is "personal" to the affected person. [ 69 ] At paragraph 77 Sherman Estate gave examples of the types of information that, if exposed, could give rise to a serious risk to personal dignity. 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 persons who were subjected to sexual assault, but not a person charged with committing a sexual assault. [ 70 ] The Applicant also submitted that his livelihood and that of his associates and employees would be adversely affected if his identity were to become public.

This too is personal and private being principally financial in nature. [ 71 ] As pointed out by the Crown in paragraph 5 of its brief, Parliament has provided in the Criminal Code for publication bans in a number of circumstances but not in the case of persons charged with a criminal offence: 5. … - s. 486.31 permits the presiding judge, in narrow circumstances, to prohibit the disclosure of information that could identify a witness; - s. 486.4 provides for a publication ban with respect to information that may identify a victim or a witness when the accused is charged with listed sexual offences; and,

- s. 486.5 permits the presiding judge to order publication bans on information that may identify a victim or witness when theaccused is charged with charges involving criminal organizations or terrorism [72] I reject the Applicant’s assertion that the release of his identity on the facts of this case attack his biographical core. Theinformation which would be revealed is his name and the fact that he is being charged with a number of sexual offences. While it wouldundoubtedly be embarrassing, it does not impact his biographical core. It does not raise a serious risk to an important public interest.

Itdoes not reach the “high bar” established in Sherman Estate and the authorities cited therein. The interests of the Applicant engaged inthis case are purely private and personal. [73] As the Supreme Court stated in Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33 at paragraph 78: “ If open courts areto remain the rule rather than the exception, some degree of privacy loss for those whose lives are the subject of litigation is inevitable.” [74] There is nothing exceptional about the charges against the Applicant.

If a publication ban were to be issued in this case, thenalmost anyone charged with a criminal offence could claim the same protection. This would constitute a sea change in the criminal law. The appropriate authority to make such a change is Parliament, not the court. [75] The third public interest identified by the Applicant to be put at risk if a publication ban is not issued in this case (although notstrongly pressed in oral argument) is the reputational interests of the legal profession. The Applicant relied on A Lawyer v.

The LawSociety of British Columbia, 2021 BCCA 284 (“A Lawyer”) in support of this proposition. In that case, the BC Law Society had initiatedan investigation into the lawyer’s entire legal practice. A partial sealing order was granted within the Sherman Estate formula as therelease of the information in the investigation would affect the livelihood of the lawyer and his firm. [76] In my view, this case is distinguishable from the case at bar. The matter was in the investigation stage only (no charges ofprofessional misconduct had been laid at that point).

The information being sought to be restricted from publication contained sensitiveand privileged information (A Lawyer, paragraph 65). [77] In John Doe (Re), 2020 NLSC 6 a lawyer had been found guilty of professional misconduct and received a brief suspension. The Law Society rules required the publication of the decision of the adjudication panel. Doe wished to challenge the sanction decisionand sought an order banning publication of the decision pending his appeal and/or judicial review. If successful, publication would notbe required. [78] Doe was employed in industry and was not in private practice.

His employer was aware of the disciplinary action against himbut as long as it remained confidential it was content to continue to employ him. However, if the Law Society sanction became public,his employment would be terminated. Orsborn, J. denied the application and, applying the test in Mentuck, he wrote at paragraph 22: 22 In this case, the interests that X seeks to protect are purely private and personal.

Accepting fully X's evidence that the employerwill indeed terminate X's employment if information on X's conduct and professional sanction enters the public domain, the interests atrisk are primarily financial — in terms of loss of employment — and personal in the sense of wishing to avoid embarrassment. [79] The Applicant relied on the assertion that he is a prominent lawyer in Newfoundland and Labrador.

To grant the publicationban on this basis on the facts of this case would put lawyers in a special category of accused persons which would seriously underminethe public’s confidence in the administration of justice. In fact, the applicant was found guilty of four separate charges of professionalmisconduct which would also damage the reputation of the legal profession. Yet these charges were made public. [80] In R. v. Several Unnamed Persons, (ON SC), 1983 CarswellOnt 1393, 44 O.R. (2d) 81 (H.C.), a number ofpersons were charged with gross indecency contrary to the Criminal Code.

A number of the unnamed persons applied for a publicationban of their names.

In denying the application, O’Brien, J. stated at paragraph 10: 10 In my view, if one were to accept the applicants' argument in this case, it would follow logically that, subject to the exercise ofsome judicial discretion, the more serious the alleged criminal act, or the higher the standing or reputation of the accused in thecommunity, the more such accused should be protected from publicity and, therefore, it would follow many serious criminal trials shouldbe either privately or secretly conducted, or the identity of the accused not disclosed.

In a free and democratic society, in my view thisargument cannot be accepted. I believe it is a matter of great public importance that the light of public knowledge should illuminate ourcourt proceedings. Sometimes, that light may be harsh. I think I can put it no better than in a quotation from Bentham referred to by theOntario Court of Appeal in Re Southam Inc. and The Queen (No. 1) (1983), (ON CA), 41 O.R. (2d) 113 at p. 120, 3C.C.C. (3d) 515 at p. 521, 146 D.L.R. (3d) 408 at p. 415. The following quotation was approved: Where there is no publicity there is no justice. Publicity is the very soul of justice.

It is the keenest spur to exertion and surest of allguards against improbity. It keeps the judge himself while trying under trial. IS A publication ban necessary to prevent serious risk to the identified public interests? [81] Since I have found that the Applicant has failed to establish an important public interest to which court openness would pose aserious risk, it is not strictly necessary for me to deal with the other two stages of the Sherman Estate test.

The court stated at paragraph38: “Only where all three of these prerequisites have been met can a discretionary limit on openness — for example, a sealing order, apublication ban, an order excluding the public from a hearing, or a redaction order — properly be ordered.” Since the Applicant hasn’tpassed the first stage of the test, this disposes of the application. Nevertheless, for the sake of completeness, I propose to assume that theApplicant has scaled the first hurdle and deal with the last two.

It should be recalled that the public interests identified by the Applicantas being at stake are: the presumption of innocence, the Applicant’s privacy (as it relates to his dignity); and the reputational interests oflegal professionals.

[ 82 ] While it is true that publication bans are among the least onerous examples of discretionary limits on court openness, they must nonetheless be justified under the Sherman Estate rules. The Applicant submitted that the “risk to the identified interests arises from the fact of publication itself” and “ultimately, nothing short of a ban is capable of mitigating the harms associated with publication.” (Applicant’s Factum, paragraph 75).

He says defamation laws would not offer any comfort as if the CBC and CTV simply reported the accurate fact that he had been charged and used the word “alleged” in reference to it, then he would not have a remedy. Likewise, he submitted that there are no adequate alternative remedies available to correct the harm done through disclosure of his identity. He says no tools such as “de-indexing” are available in Canada.

De-indexing is the process by which a particular webpage, image, or other online resource is removed from the results returned by a search engine when an individual’s name is entered as the search term. (“Draft OPC Position on Online Reputation”

(2018) Office of the Privacy Commissioner Canada), p. 5/16, Bennett affidavit, Tab L [ 83 ] The Applicant also relied on the evidence of Matthew Earle to the effect that an alternative to a publication ban exists in theory only. Mr. Earle testified that online reputation management (a service his company offers) is imperfect at best.

He stated in his affidavit at paragraph 13, “In cases where a reputation has been seriously damaged through widespread media coverage, online reputation management is the process of minimizing not erasing the impact of certain information about a person.” (emphasis in original). [ 84 ] The Applicant emphasized that the only effective way to address the presumption of innocence and dignity concerns raised in this case is a ban on the publication of the information which could lead to his identity.

Nevertheless, the Applicant conceded that the ban could be set to expire if he is found guilty following a trial. [ 85 ] I reject the Applicant’s submission that there are no reasonable alternatives to a publication ban. The Applicant will be afforded all the protections of the presumption of innocence to ensure a fair trial (it is noted that the Applicant has not raised the issue of fair trial rights here).

As already noted above, the presumption of innocence is not designed to protect an accused from the publication of embarrassing personal information. [ 86 ] The law of defamation will operate to protect the Applicant’s reputation against incorrect or malicious reporting. [ 87 ] Likewise, I reject the assertion on the facts of this case that it is merely a “fiction” that the use of the word “alleged” or that “the charges have not been proven in court” in describing the charges against the Applicant do not remove the defamatory sting of a wrongful allegation of sexual assault. (Applicant’s Factum, paragraph 78) [ 88 ] In my view, in 2022 a reasonable person is much better able to differentiate between a person charged with an offence and a person convicted of it than suggested by the Applicant.

As the Ontario Court of Appeal stated in Frank v. Legate , 2015 ONCA 631 at paragraph 40 in describing a reasonable person, speaking in the context of a defamatory remark, but I feel it applies generally: 40 A reasonable person in this context is one who is reasonably thoughtful and informed, who would understand the difference between allegations and proof of guilt. Such a person would keep in mind that an accused person is presumed innocent until proven guilty: Guergis , at paras. 38 and 57; Miguna v. Toronto Police Services Board , [2004] O.J. No. 2455 (Ont. S.C.J.) , at paras. 4-6 , aff'd [2005] O.J.

No. 107 (Ont. C.A.) . [ 89 ] As well, it is not correct to say that de-indexing is not available in Canada. Under certain circumstances it may be available. In the 2018 “Draft Office of the Privacy Commissioner of Canada Position on Online Reputation”, (Bennett Affidavit, Exhibit L, Pages 7- 8) the Privacy Commissioner states that de-indexing is available under PIPEDA , (the Personal Information Protection and Electronic Documents Act , S.C. 2000, c. 5 ).

The Commissioner’s position is that de-indexing in some circumstances could be available under PIPEDA for such things where information concerns a criminal offence for which the individual has been given a discharge, a pardon or a record suspension or where the individual is a public figure (for example, a prominent business person). [ 90 ] This

interpretation was expressly approved in Reference re Subsection 18.3(1) of the Federal Courts Act , 2021 FC 723 at paragraphs 60 and 97 (currently under appeal) . Canadian courts have upheld de-indexing and site blocking orders in some Canadian cases: Google Inc. v. Equustek Solutions Inc. , 2017 SCC 34 , Teksavvy Solutions Inc. v. Bell Media Inc . , 2021 FCA 100 . [ 91 ] Of course, the services of a company such as Mr. Earle’s would also be available. While Mr.

Earle said he offered no guarantees, I conclude from his testimony that with sufficient time he could have an impact on any damage to the Applicant’s reputation if he were to be identified in this case. (see Exhibit ME #4, an actual case study of a similar case found on the website of Mr. Earle’s company, Reputation.ca.) While Mr.

Earle’s services are expensive (perhaps, he estimated, as much as $50,000), the evidence is that the Applicant is a person of means who could likely afford them. [ 92 ] In the result, I find that while a publication ban might be the best result the Applicant could ask for, there are other reasonably available alternatives to protect his reputation and dignity.

AS A matter of proportionality, The benefits of a publication ban outweigh its negative effects [ 93 ] The final stage of the Sherman Estate test requires the court as a matter of proportionality to consider whether the positive benefits of the publication ban requested outweigh its negative effects (paragraph 38). [ 94 ] The Applicant identified the positive benefits he saw in granting the publication ban in paragraph 87 of his brief: 87. The benefits of this order should already be apparent. A publication ban will cut off the identified risks to the presumption of

innocence, the Applicant’s privacy, and the reputational interests of legal professionals right at their source. With the benefit of apublication ban, the Applicant’s professional life, business, reputation, health, and personal relationships will not be exposed to theharms associated with the rapid dissemination and permanent storage of the allegations against him. [95] He submitted the negative effects of the ban do not come close to outweighing its positive effects.

While accepting that anypublication ban will operate to limit the open court principle and freedom of the media to report on matters before the court, theApplicant submitted that the ban requested is the minimal necessary to protect the important public interests he identified. He submittedthat knowing the identity of someone is relatively insignificant: A.B. (Litigation Guardian of) v. Bragg Communications Inc., 2012 SCC46 at para. 28 (“Bragg Communications”).

He says the media would not be restricted from attendance at all court proceedings andreporting on them provided their reports do not lead to the disclosure of his identity. [96] I’ve not been referred to a case such as the one before me where a publication ban has been issued on the identity of an adultaccused person in an ongoing criminal case.

The cases relied on by the Applicant related mostly to the identity of young persons aslitigants in civil matters (Bragg Communications) or of complainants in criminal sexual matters which has long been recognized both bythe courts and by Parliament as worthy of protection. Re CBC involved charges that had been either withdrawn or stayed by the Crownby the time the matter reached the court for a determination whether to issue a publication ban. In other words, there was no ongoinglegal process involving the accused.

That is not the case here. [97] In my view, the Applicant here is asking the court to make a significant change in the law. I have already concluded that thepresumption of innocence is not at risk if no publication ban is granted. In protecting the Applicant’s reputation by issuing a ban on hisidentity, the court would be seriously impacting the public interest in encouraging persons with relevant information about similarallegations from coming forward. It would also negatively impact the public’s interest in seeing that all individuals charged withcriminal offences are treated fairly and equally.

Justice done in secrecy is contrary to the tenets of a democratic society. [98] As stated in Edmonton Journal (The) v. Alberta (Attorney General), (SCC), [1989] 2 S.C.R. 1326 at paragraph22: 22 In

summary, the public interest in open trials and in the ability of the press to provide complete reports of what takes place in thecourtroom is rooted in the need 1) to maintain an effective evidentiary process; 2) to ensure a judiciary and juries that behave fairly andthat are sensitive to the values espoused by the society; 3) to promote a shared sense that our courts operate with integrity and dispensejustice; and 4) to provide an ongoing opportunity for the community to learn how the justice system operates and how the law beingapplied daily in the courts affects them. [99] Therefore, any positive benefits of a publication ban are outweighed by the negative effects on the open court principle. conclusion [100] The Applicant, a lawyer, has been charged with several counts of sexual assault against the same complainant (one of the countsarising when the complainant was a child), and one count of sexual interference.

He sought a common law ban on the publication of hisname or anything which could lead to the disclosure of his identity. [101] The Applicant has failed to meet the test for a restriction on the open court principle represented by a publication ban as statedrecently by the Supreme Court of Canada in Sherman Estate. The application is therefore denied. [102] The interim publication bans and sealing order are vacated. [103] CBC and CTV shall have their costs jointly against the Applicant under Column 3. The Crown shall bear its own costs. _____________________________ James P. Adams Justice