AB v Canada (Attorney General): A Clash of Open Court Policy and Privacy

An Ontarian has successfully sought a constitutional exemption from sections 241(b) and 14 of the Criminal Code RSC, 1985, c C-46, allowing him to access physician assisted-suicide (“PAS”). The applicant, A.B., was an 80-year-old gentleman with advanced-stage aggressive lymphoma. Interestingly, this case raised the competing values of privacy and the open court principle.

In AB v Canada (Attorney General), 2016 ONSC 1571 [AB], the applicant brought a motion for an order that would ensure the privacy of himself, his family, and his physicians. The Attorney Generals for Canada and Ontario took no position. However, the Globe and Mail, the Canadian Broadcasting Corporation, CTV (a Division of Bell Media Inc.), and Postmedia Network Inc. (“media respondents”) opposed the motion. The central issue in the motion was whether there should be a publication ban and anonymity for the respondent doctors. Justice McEwen correctly sealed the file, allowed the parties (including the respondent physicians) to proceed anonymously, and ordered a publication ban “with respect to any identifying information relating to the applicant, his family, the respondent physicians and the applicant’s healthcare providers” (AB, 39). 

Orders Sought

A.B. sought four orders to protect the confidentiality of himself, his family, and his doctors:

1. An order allowing the moving party and the respondent physicians to be identified anonymously in the application for an order authorizing a physician-assisted death pursuant to Carter;
2. An order banning the publication of any identifying information related to the moving party, his family members and his physicians (including the respondent physicians);
3. An order sealing the evidence, documents and pleadings filed in the application subject to the moving party’s undertaking to provide the filed evidence, documents and pleadings upon request to members of the public and media in a form redacted to remove any information that would identify or tend to identify the moving party, his family members, or his physicians (including the respondent physicians); and
4. An order for the sealing of this motion record (AB, 5) [Emphasis added].

Open Court Principle

The open court principle requires that court proceedings be open to the public. This encompasses information pertaining to the identity of the parties of the proceeding. Publication bans, sealing orders, and anonymizing parties prevent the public, often via the media, from knowing what is occurring during the legal proceedings. As a result, the open court policy is vital to a democratic society and to freedom of expression. In Canadian Newspapers Co v Canada (Attorney General), [1988] 2 SCR 122, the Supreme Court (“SCC”) held that “[f]reedom of the press is indeed an important and essential attribute of a free and democratic society, and measures which prohibit the media from publishing information deemed of interest obviously restrict that freedom” (129).

In R v Mentuck, [2001] 3 SCR 442 [Mentuck] the court expanded on the two-part sealing order test originally set out in Dagenais v Canadian Broadcasting Corp, [1994] 3 SCR 835 First, the sealing order must be necessary to prevent a serious risk to an important interest in the context of litigation (Mentuck, 32). Second, the sealing order must be proportional; the salutary effects should outweigh the deleterious effects (Mentuck, 32). This is a high threshold, and therefore, limits sealing court documents to cases where doing so is necessary and proportional.

Consensus on Some Privacy

The media respondents accepted that the applicant did have a right to privacy, and they reasonably accepted that some information would be subject to a publication ban. They did not contest every element of each order. First, they did not oppose the applicant’s request to proceed anonymously. Second, they did not oppose the publication ban prohibiting reporting on the identity or identifying information about the applicant. Third, they did not oppose the publication ban on reporting on the identity of the applicant’s family members.

The Media Respondent’s Position

The media respondents opposed the redaction and publication ban on the names of the respondent physicians. They contended that this did not strike the right balance between individual privacy and public interest. The media’s submission was premised on two propositions.

First, the public has the right to know the names of the physicians providing PAS in order to determine whether the same doctors are involved in the constitutional exemption cases. This proposition is premised on the fear that some doctors will “rubber-stamp” a patient’s request for PAS. This fear disregards the gate-keeping function of the courts. The Superior Courts will only grant a constitutional exemption if the applicant meets the evidentiary threshold of being “grievously and irremediably ill” established in Carter v Canada (Attorney General), [2015] 1 SCR 331, 147.

Further, following the extension of time granted to the Federal government in Carter v Canada (Attorney General), 2016 SCC 4, Chief Justice Heather Smith of the Superior Court issued a Practice Advisory – Application for Judicial Authorization of Physician Assisted Death (“Practice Advisory”). Per the Practice Advisory, both the attending physician and consulting physician must submit affidavits outlining the applicant’s medical condition, and assurances that the applicant provided informed consent. Since the Application Judge needs to be satisfied that the evidentiary record falls within the framework established in the Practice Advisory, no doctor can rubber stamp endless requests from patients seeking PAS.

Further, as Justice McEwen pointed out, this is the first application for a constitutional exemption in Ontario (AB, 30). It is unlikely that between now and June 6, 2016, when the Department of Justice plans to introduce a statutory regime, that there will be a plethora of people seeking PAS using the same doctor, who also does not rigorously ensure they meet the Practice Directive.

Second, the media respondents contend that if the doctor’s names are subject to a publication ban, individuals seeking PAS will not know which doctors to seek out. Justice McEwen correctly rejected this contention. A person seeking PAS will ask their existing doctor(s) or ask for referrals.

The Applicant’s Position

Justice McEewen rightly granted the order. The applicant’s position was that the orders are necessary “in order to ensure that the applicant, his family, physicians and other health care professionals, are not deterred from participating in a Carter application for fear of unwanted publicity and media attention” (AB, 18).

One reason that Justice McEwen decided for the applicant was the applicant sought moderate relief when compared to HS (Re), 2016 ABQB 121. In HS (Re), an Albertan was granted a constitutional exemption and allowed to seek PAS. In HS (Re), the hearing took place in camera. By contrast, A.B. sought a hearing in open court, but with limitations on the dissemination of names of the parties. This appears to be a reasonable request when compared with HS (Re).

One unstated factor that was likely weighed in Justice McEewen’s decision is the past treatment of clinics and doctors that provide abortion. PAS, like abortion, has divided societal opinion and received staunch opposition from some religious groups. If the names of the respondent physicians were made public, it is likely that their offices would be swarmed by pro-life picketers. While less likely, it is also possible that the physicians could face violence. Dr. Morgentaler was famously attacked by a Torontonian with garden shears. Planned Parenthood clinics have often been targeted by violence. In November of last year, Robert Lewis Dear killed three people in Planned Parenthood in Colorado. If the doctor’s names were made public, fewer doctors would be willing to provide PAS. As a result, individuals would have difficulty seeking PAS. 

Conclusion

Justice McEwen correctly weighed the opposing individual privacy interest and the public interest in having open courts. The media was allowed to report on the outcome of the application and sit in the courtroom. The public debate surrounding PAS will not be diminished by keeping the parties names confidential. Had Justice McEwen found for the media respondents, these doctors could become the target of pro-life campaigns and other doctors would be hesitant to participate in PAS as either an attending or consulting physician. As a result, this decision gives meaning to the section 7 rights of future applicants, as determined in Carter.