File:AB v United Kingdon (Attorney General) 2019 NSSC 289.pdf


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supreme court nova scotia citation a.b united kingdom attorney general nssc date docket hfx registry halifax between: a.b. plaintiff great britain and northern ireland general) defendant decision judge the honourable justice darlene jamieson heard july oral written september counsel michael dull kelsey nearing for leanne fisher court: introduction this motion confidentiality order that would allow proceed with action using pseudonym specifically, requests directing any pleading document filed use “l.a.” place plaintiff’s legal name. also seeking resulting from reference solely provide identity not published broadcast. statement claim alleges about april she was sexually assaulted “several defendant’s employees” who were hockey tournament. only evidence solicitor’s affidavit did argue states part follows: … advised her belief will suffer serious harm connection verily believe true. assaults issue subject criminal investigation trial which concluded january those proceedings received high-profile coverage media outlets across canada select examples such are attached exhibit “a.” i’m has been identified name due publication ban relation proceedings. native current resident area currently undertaking graduate education hopes pursue career professional community upon graduation. genuine concerns continuing prosecute under own bring unwanted attention follow throughout personal life. articles include vancouver sun globe mail two publications telegraph daily dated either october duncan prior proceeding smalley contained book authorities paras indicates time alleged 21-year-old undergraduate university student aspirations going medical school. procedure test civil rule applicable states: may record kept confidential satisfied accordance law including freedom press other section canadian charter rights freedoms open courts principle. 85.04(2 provides following example confidentiality: permitting party person referred but heading. parties agree determining whether should granted what become known dagenais/ mentuck first set out canada’s dagenais broadcasting corp scr subsequently modified scc contains two-pronged assessment ordered if: necessary prevent risk proper administration because reasonable alternative measures salutary effects outweigh deleterious interests public right free expression accused fair efficacy supra. position says one being preventing nature allegations likely have very damaging impact life points enduring internet era fact verge embarking argues associating ensure undesirable consequences could adult refusal grant relating chilling willingness victims sexual assault seek redress through actions where appropriate further deny present case effectively circumvent proceeding. [10 second long recognized appropriateness protect crimes importance protection outweighs impacts. they say protects vital interest access system remedy requested minimally impairing principle relative unimportance face unsealed file. [11 (attorney opposes relied falls far short meeting rigorous required displace presumption demonstrated “serious risks justice” flow granting nor doing. [12 mandated pursuant code, does specific outlined expressed “genuine life.” much more compelling precise actual constitutionally justified. [13 meh williams onca support its amount justice, physical emotional must debilitating degree undermine moving party’s ability convincing close scrutiny meet standards based expert opinion firmly reliable circumstances condition litigant. analysis [14 pillar our abella, majority said bragg communications inc para 11: requires presumptively accessible described ‘hallmark democratic society’ s.c.c inextricably tied expression. restrictions anonymously content fake facebook profile. inquiry into each these important impairs little possible can just engaged restriction unjustified alternatives exist turns balance struck between privacy girl s.c.r (s.c.c [2001 [emphasis added] [15 automatic given plaintiffs cases involving individual dagenais/mentuck matter applied matter. brought context factor consideration application below. [16 before address emphasize in-camera hearing sealed pseudonym. [17 risk. [18 find there sufficient garnered significant both illustrated intimate details reported logical infer fear future professional/employment result intense real potentially losses over above claimed [19 abella supra 16: amicus curiae pointed absence vulnerability while direct harmful consequence applicant relevant conclude objectively discernable harm. found objective upholding constitutionality quebec's rules practice limited media's film take photographs conduct interviews société radio-canada québec procureur général prohibiting video dufour [2011 former deschamps held para. neither less than oakes [1986 words absent scientific empirical necessity restricting applying reason logic rjr-macdonald thomson newspapers [20 note specifically findings radio- addressing particular children comments citizenship immigration) sebastian federal abella’s “a judgment anonymized even though dissemination applicant’s identity.” [21 mean alleging excused test. means determine re-traumatization their linked related assault(s [22 employees.” concern here simply embarrassment hers intensely private information incidents violation make way sphere type potential exacerbate trauma suffered plaintiff. [23 article reports entitled “nova deliver verdict british sailors gang rape case.” explicit forensic body specifics injuries sustained etc. [24 arnold “…parliament’s intention regarding need complainants detailed code canada.” atty gen [1988 confirmed version valid protecting victim’s encourages reporting concept encouraging now deeply rooted law. [25 certainly without publicly connected perpetuity arise previously concerning [26 school per smalley, years old lifetime ahead illustrate level publicity attaching litigation available all internet. come high price concerns. [27 grammond stated minister immigration 42: moreover uphold account realities cyberspace see generally eltis “the judicial digital age revisiting relationship accessibility cyber context” 56: mcgill modern search engines considerably easier retrieve thus when judgements containing sensitive contain easily anyone. [28 relies extensively ontario appeal argument reliance factual bear resemblance involved divorce addition sought seal entire entirety affidavits treating psychiatrist as: respondent quan his letters properly characterized speculation assumption. rests entirely assumption immediate harassment occasioned “persistent insistent incessant” efforts invade assumptions foundation consequently quan’s cannot kind needed standard demanded branch [29 noted another overlap had adverse suggest fraudulent conveyance amounted ‘feeding frenzy’ ‘persistent incessant’.… media’s issues some [30 seeks measure step satisfied. [31 solicitor making swears facts merits avoided invariably leads arguing basis although cross-examination regardless solicitors’ purely procedural assertions issue. clearly preferred advanced. [32 strike portions during submissions indicated hearsay permissible provided deponent establishes source witness's done however several statements combined still circumstances. [33 [34 protected absolutely fundamental essential functioning particularly promotion transparency societal ensuring legitimate prohibit people accessing fearful becomes victim facilitates justice. [35 25: already victim's analytical leap likelihood child himself herself bullying greatly enhanced anonymously… [36 chief lamer ordering bans vulnerable witnesses offences encourage 87: richer clash model suggests rather focusing always limit usually aim may: maximize chances testify publicity; police informants preserve individuals process…; offences. [37 dickson writing macintyre [1982 said: view curtailment justified social values superordinate innocent. [38 involve intensely-personal dissuading similarly-situated having names accessed prospective employers litigant’s family members, friends [39 accept deemed among category “innocent” deserving (see doe t.b.h [1996 o.j jane excobar 3509; john p.a.b.d nltd dealing strong favour careful overly strict adherence sacrifice assault. [40 brief: pursued charges battery against four team members dropped/withdrawn stayed reasons re-institution third member fully dismissed fourth hon [41 refers credibility reliability intended indicate longer considered “innocents,” disagree crown proven elements offence beyond doubt nothing duncan’s impossible know truth begins ends prove consent obviously, something occurred room maybe credible unsafe convict. [42 remain unproven columbia g.b bcca 345: clear fraud perjury matters unproven. [43 representative blair rhodes cbc appeared indicating opposing notice motion. [44 benefit principle: answer side balancing — countervailing harms decided provision disclosure challenged mandatory unduly restricted observed that: nonetheless value society hampered lightly limits imposed minimal prevents reveal complainant's concealed added perspective insignificance knowing party's binnie f.n young offenders legislation merely sliver [2000 s.c.r. acknowledgement complete nondisclosure line sexualized exercise court’s benefits anonymity [45 naming associated forever world reside request affect interest. openness comparison fail none raised impair defend interests. [46 negative proposed balanced latter [47 hold in- camera etc different additional evidence. conclusion [48 ask prepare order. [49 consented costs

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