


WARNING

The President of the panel hearing this appeal directs that the following
    should be attached to the file:

The court orders that the non-publication and sealing order
    of Justice V. Jennifer Mackinnon dated April 12, 2011 and the interim order of
    this court prohibiting publication of material filed in this court or
    information referred to at the appeal hearing that was subject to the order of
    Justice Mackinnon will remain in effect for fourteen days following the release
    of these reasons unless otherwise ordered by a court of competent
    jurisdiction.  Thereafter, subject to any such further order, the interim order
    of this court shall expire and the order of Justice Mackinnon is set aside,
    with the exception that the provisions of the non-publication order as it
    relates to the respondents social insurance number, date of birth, bank
    account numbers and domestic contract produced on the motion shall continue. 
    The provisions of the non-publication order as it relates to the medical
    information produced on the motion shall continue, but does not extend to
    references to that information found in either the motion judges reasons or in
    the reasons of this court.






CITATION:
M.E.H. v. Williams, 2012
          ONCA 35




DATE:  20120124



DOCKET: C53701



COURT OF APPEAL FOR ONTARIO



Doherty, Armstrong and Hoy JJ.A.



BETWEEN



M.E.H.



Applicant (Respondent)



and



David Russell Williams



Respondent

and

The
          Ottawa Citizen (a division of Postmedia Network Inc.)
, CTV Inc.,
The
          Canadian Broadcasting Corporation
, Global Television (a division of Shaw
          Communications), and The Ottawa Sun (a division of Sun Media Corporation)

Interveners (Appellants)



Richard G. Dearden and Ryan Kennedy, for the interveners
          (appellants)

Mary Jane Binks, Q.C. and Jonathan M. Richardson, for the
          respondent












Heard:  November 29, 2011

On appeal from the order of Justice
          V. Jennifer Mackinnon of the Superior Court of Justice dated April 12, 2011,
          with reasons reported at 2011 ONSC 2022.

Doherty J.A.:



I

OVERVIEW

[1]

The respondent proposes to commence a proceeding in which she will seek
    a divorce and corollary relief from her husband, David Russell Williams
    (Williams).  She brought a motion seeking an order sealing the entire record in
    the proceeding she proposes to bring against Williams.  Alternatively, the
    respondent sought an order banning publication of the medical evidence relied
    on in support of her motion and banning publication of any financial or medical
    records that may be produced during the proceedings against Williams.  Although
    not specifically requested in the notice of motion, the respondent also sought
    an order prohibiting publication of any information that would identify her by
    name as the person bringing the proceedings against Williams.

[2]

Williams did not oppose the motion.  Various media organizations were
    served with notice of the motion and several, including the Ottawa Citizen and
    the Canadian Broadcasting Corporation (appellants), were granted intervener
    status on the motion.  They opposed the motion.

[3]

The motion judge made a non-publication and sealing order.  The orders
    were broad, but not as broad as requested by the respondent.  The terms of the non-publication
    order can be summarized as follows:

·

A term banning publication of any information that served to
    identify the name, address or contact information of the respondent.  She was
    to be referred to in the title of proceedings as M.E.H.  Any accounts relating
    to the divorce proceedings were to refer to her by those initials or as the
    wife of Williams.

·

A term banning publication of any photograph or likeness of the
    respondent in any report or publication relating to the motion or to any aspect
    of the divorce proceeding.

·

A term banning publication of the name, address, or contact
    coordinates of the respondents employer in any report or publication relating
    to the motion or divorce proceedings.

·

A term banning publication of the respondents social insurance
    number, her date and place of birth, the address of her real property, the
    names of any financial institutions with which she deals and the respondents
    account numbers at those institutions in any report or publication relating to
    the motion or the divorce proceedings.

·

A term banning publication of any information filed in the
    divorce proceedings referable to the assets or liabilities of the respondent
    not derived from transfers or assignments to her from Williams after February
    2010.

[4]

To give effect to the non-publication order, the motion judge provided
    that a redacted version of the record with the information covered by the
    non-publication order removed from it would constitute the public record of the
    proceedings.

[5]

In addition to the non-publication order, the motion judge ordered that
    any tax returns or income and expense portions of financial statements filed in
    the divorce proceedings by the respondent could be filed under seal.

[6]

The motion judge also made a non-publication order in respect of the medical
    information filed on the motion and the domestic contract between Williams and
    the respondent produced on the motion.  While the order itself is not clear,
    the parties have proceeded on the basis that the non-publication order with
    respect to the medical information and the domestic contract does not extend to
    the references to that information in the motion judges reasons.  I will also
    proceed on that basis.

[7]

The appellants appeal from the order of the motion judge.  They
    challenge most, but not all of the terms of the order.  The appellants do not
    challenge the non-publication order as it relates to the respondents social
    insurance number, her date of birth, or her bank account numbers.  They also do
    not challenge the non-publication order applicable to the medical information
    and the domestic contract produced on the motion.

[8]

I do not understand the appellants to concede that the unchallenged
    aspects of the motion judges order were properly made.  Instead, they simply
    choose not to make any arguments against those parts of the order because they
    regard the information covered by those terms to be irrelevant to their
    purposes, and they accept that the references in the motion judges reasons to
    the medical evidence and the domestic contract are sufficient for their
    purposes.

[9]

I would allow the appeal.  The motion judge correctly identified the
    applicable legal principles.  However, the evidence cannot support her
    conclusion that the orders were necessary to prevent a serious risk to the
    proper administration of justice.  Absent that finding, the orders could not
    have been made under the controlling jurisprudence.

II

BACKGROUND

[10]

In February 2010, Williams, who was at the time a colonel in the
    Canadian Forces and the commander of the air force base at Trenton, Ontario,
    was charged with two counts of first degree murder, two counts each of sexual
    assault and forcible confinement, and 82 counts of break and enter.  The
    allegations were stunning in their depravity, especially in light of Williams
    high military rank and his apparently sterling character.  In October 2010,
    Williams pled guilty to the charges and was sentenced to life imprisonment
    without eligibility for parole for 25 years on both counts of first degree
    murder.  Concurrent sentences were imposed on the other charges.

[11]

Understandably, the charges and prosecution of Williams sparked
    widespread public interest.  That interest has been reflected in intense media
    coverage, particularly when the charges were laid and when Williams pled guilty
    and was sentenced.

[12]

According to the material filed on the motion, and I do not understand
    the appellants to challenge this, the respondent was shocked and devastated by
    the charges laid against her husband.  Through the revelations that followed
    the laying of the charges, the respondent learned that her husband, to whom she
    had been married for many years and who she believed to be a highly respected,
    successful and loving man, was in reality a sexual predator and coldblooded
    serial murderer.  On the unchallenged evidence, the respondent is indeed yet another
    victim of Williams depravity.

[13]

The respondent finds herself associated in media reports with Williams,
    now one of Canadas most notorious murderers.  Some media reports have
    identified her by name and referred to her place of employment and her position
    there.  The respondents photograph has appeared in the newspaper in
    association with some of these articles.

III

THE PROCEEDINGS ON THE MOTION

(i)

The Submissions

[14]

The respondents request for non-publication and sealing orders was
    based entirely on the affidavit of her treating psychiatrist, Dr. W. Quan.  He
    was cross-examined on his affidavit.

[15]

Counsel for the respondent argued that Dr. Quans evidence established a
    real and substantial risk to the respondents mental wellbeing if the media was
    allowed to identify her by name or other details and/or publish the kind of
    financial and personal information routinely filed in divorce proceedings and
    available to the media in Ontario.  Respondents counsel submitted that the
    evidence went beyond evidence demonstrating the respondents personal distress
    and embarrassment and spoke to the respondents ability to gain access to the
    courts, an issue of public importance to the administration of justice. 
    Counsel contended that a litigant like the respondent, who is required to go to
    court to obtain a divorce to sever her relationship with her husband, should
    not be put in a position where the publicity attendant upon gaining that court
    access would pose a substantial risk to the litigants mental health.

[16]

Counsel for the respondent next argued that the salutary effects of the
    non-publication and sealing orders sought outweighed the deleterious effects of
    those orders, including the inevitable negative impact on freedom of expression
    and the open court principle.  Counsel stressed that while divorce proceedings,
    like any court proceeding, have an important public component, the matters at
    issue in this proceeding were essentially private matters between the
    respondent and Williams.

[17]

Counsel for the appellants submitted that, absent an affidavit from the
    respondent, the evidence of Dr. Quan was inadmissible.  Counsel further
    submitted that even if Dr. Quans evidence was admissible, it did not provide
    the kind of convincing evidence needed to establish harm to the administration
    of justice that would warrant the wide-ranging non-publication and sealing
    orders sought.

[18]

Counsel stressed the absence of any affidavit from the respondent and
    her ongoing participation since June 2010 in a lawsuit in which she and
    Williams are defendants in a fraudulent conveyance action brought by one of
    Williams victims.  The respondents statement of defence and an affidavit she
    filed in that proceeding revealed a good deal of the information that she
    sought cloaked in non-publication and sealing orders in her pending divorce
    proceedings.  No non-publication or sealing order had been made in respect of
    the respondents identity or the information contained in her statement of
    defence and the affidavit filed in the fraudulent conveyance action.  The media
    had referred to the contents of that material and nothing filed on the motion
    suggested that the media reports had caused any harm to the respondent or
    interfered with her ability to defend herself in that proceeding.

[19]

The appellants also led evidence on the motion that the respondents
    lawyer had given an interview to a reporter of the Ottawa Citizen in late
    December 2010 in which she identified the respondent by name, referred to her
    place of employment, her intention to seek a divorce, and described in a
    generic way the material that would be filed in the anticipated divorce
    proceeding.  The media again reported on this information in early 2011.  The respondent
    led no evidence that she suffered any adverse consequences from the media
    reports.

[20]

Counsel for the appellant also rejected the characterization of the
    litigation as essentially a private matter.  He submitted that media access to
    and reporting on divorce proceedings, as with other court proceedings,
    furthered the transparency of those proceedings, the public accountability of
    those involved in the proceedings, and in some cases the reliability of the
    results achieved.  Counsel stressed that transparency, accountability and
    reliability are all essential to the continued public confidence in and respect
    for the administration of justice.  On a more specific plane, counsel submitted
    that the division of property between the respondent and Williams, especially
    as it related to his military pension, was a matter of public interest.

(ii)

The Motion Judges Reasons

[21]

The motion judge appreciated that the order sought was an extraordinary
    one in that it would compromise the open court principle, which she described (at
    para. 6), as one of fundamental importance... to our democratic society.  She
    approached her task using the two-step approach identified in a series of cases
    from the Supreme Court of Canada involving non-publication orders and/or
    sealing orders:  see
Toronto Star Newspapers Ltd. v. Ontario
, 2005 SCC
    41, [2005] 2 S.C.R. 188, at para. 26;
Sierra Club of Canada v. Canada
    (Minister of Finance)
, 2002 SCC 41, [2002] 2 S.C.R. 522, at paras. 45-46;
R.
    v. Mentuck
, 2001 SCC 76, [2001] 3 S.C.R. 442, at para. 32.  This approach
    is commonly referred to as the
Dagenais/Mentuck
test.

[22]

In
Mentuck
, Iacobucci J. said, at para. 32:

A publication ban should only be ordered when:

(a)

such an order is 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)

the salutary effects of the
    publication ban 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 right of the accused to a fair and public trial, and the
    efficacy of the administration of justice.

[23]

The motion judge concluded (at para. 27) that the first requirement in
Mentuck
had been met by the respondent:

The applicant has shown a real and substantial risk
    to herself which goes beyond personal sensibilities or discomfort, mere
    embarrassment or personal preference.  She requires access to this court in
    order to obtain a divorce and to finalize her financial affairs with the
    Respondent.
There is a real risk that her fragile recovery could be
    compromised by the likely renewed publicity that the proposed litigation will
    occasion.
She has established a real and serious risk to the public
    interest that access to the court not be barred by personal consequences of
    publicity.  [Emphasis added.]

IV

ANALYSIS

[24]

The first branch of the two-part inquiry set out in
Mentuck
,
    described as the necessity branch, is the focus of this appeal.  Before
    turning to the evidence, I will set out some of the important features of that
    branch of the test.

(i)

There Must be a Public Interest at Stake

[25]

Mentuck
describes non-publication and sealing orders as potentially
    justifiable if necessary in order to prevent a serious risk to the proper
    administration of justice.  A serious risk to public interests other than
    those that fall under the broad rubric of the proper administration of
    justice can also meet the necessity requirement under the first branch of the
Dagenais
/
Mentuck
test:
Sierra Club of Canada
, at paras. 46-51, 55.  The interest
    jeopardized must, however, have a public component.  Purely personal interests
    cannot justify non-publication or sealing orders.  Thus, the personal concerns
    of a litigant, including concerns about the very real emotional distress and
    embarrassment that can be occasioned to litigants when justice is done in
    public, will not, standing alone, satisfy the necessity branch of the test:
A.G.
    (Nova Scotia) v. MacIntyre
, [1982] 1 S.C.R. 175, at p. 185;
Sierra Club
    of Canada
, at para. 55;
A.B. v. Bragg Communications Inc.
, 2011 NSCA
    26, 301 N.S.R. (2d) 34, at paras. 73-75.

[26]

The respondent framed her claim in terms of her right to gain access to
    the courts to seek legal redress.  I agree with her contention that access to
    the courts is an essential component of the proper administration of justice. 
    There is no need to give any further consideration to other interests which may
    qualify under the first branch of the
Dagenais
/
Mentuck
test.

[27]

There can be no doubt that an individuals right to seek and obtain
    appropriate relief in a court proceeding is a matter of significant public
    interest impacting on the proper administration of justice.  The public
    interest in access to the courts for legal relief is particularly important
    where that access is required to give legal effect to a decision as integral to
    personal autonomy as the decision to seek a divorce.  If insisting on the
    openness usually demanded of court proceedings will effectively close the
    courtroom door to a litigant because of the physical and/or emotional
    consequences to that litigant of maintaining the openness of the courts, I am
    satisfied that the first component of the
Dagenais/Mentuck
test would be
    made out assuming that there was no reasonable alternative to some limit on the
    openness of the courts.  The court would then have to go on and address the
    competing interests under the second component of that test before deciding
    what limit, if any, would be placed on the openness of the courts.

[28]

Counsel for the appellants accepted that access to the courts is a
    matter of public interest that affects the proper administration of justice. 
    He submitted that the public interest is engaged only where it is established
    that the litigant would not go to court absent the privacy protections afforded
    by the non-publication and sealing orders.

[29]

In my view, it is not necessary that a litigant establish that he or she
    would not go to court absent the privacy protections requested.  Access to the
    courts should not come at the cost of a substantial risk of serious
    debilitating emotional or physical harm to the party seeking access.  Access to
    the courts at that cost would be more illusory than real.

[30]

The distinction between personal emotional distress and embarrassment, which
    cannot justify limiting publication of or access to court proceedings and
    records, and serious debilitating physical or emotional harm that goes to the
    ability of a litigant to access the court is one of degree.  Expert medical
    opinion firmly planted in reliable evidence of the specific circumstances and
    the condition of the litigant will usually be crucial in drawing that
    distinction:  see
Re: John Doe

P.A.B.D. #1
, 2005 NLTD 214, at
    para. 43.

(ii) 
    The Necessity Inquiry Comes First

[31]

The necessity branch focuses exclusively on the existence of a serious
    risk to a public interest that can only be addressed by some form of
    non-publication or sealing order.  The potential benefits of the order are
    irrelevant at this first stage of the inquiry:
Mentuck
, at para. 34. 
    Unless a serious risk to a public interest is established, the court does not
    proceed to the second branch of the inquiry where competing interests must be
    balanced.

[32]

As there is no balancing of competing interests at the first stage, it
    is wrong at that stage to consider the extent to which the societal interests
    underlying and furthered by freedom of expression and the open court principle
    are engaged in that particular case.  Even if those values are only marginally
    engaged (the respondents submission in this case), restriction on media access
    to and publication in respect of court proceedings cannot be justified unless
    it is necessary to prevent a serious risk to a public interest.  A court faced
    with a case like this one where decency suggests some kind of protection for
    the respondent must avoid the temptation to begin by asking: where is the harm
    in allowing the respondent to proceed with some degree of anonymity and without
    her personal information being available to the media?  Rather, the court must
    ask: has the respondent shown that without the protective orders she seeks
    there is a serious risk to the proper administration of justice?

(iii) 
    Freedom of Expression and the Open Court Principle

[33]

In approaching the necessity branch of the inquiry, the high
    constitutional stakes must be placed at the forefront of the analysis.  Freedom
    of expression, including freedom of the press and other media communications,
    is a constitutionally protected fundamental freedom.  The constitutional right
    to freedom of expression protects the medias access to and ability to report
    on court proceedings.  The exercise of this fundamental freedom in the context
    of media coverage of court proceedings is essential to the promotion of the
    open court principle, a central feature of not only Canadian justice, but
    Canadian democracy:
Canadian Broadcasting Corp. v. Canada (Attorney General)
,
    2011 SCC 2, [2011] 1 S.C.R. 19, at paras. 1-2;
Vancouver Sun (Re)
, 2004
    SCC 43, [2004] 2 S.C.R. 332, at para. 26;
Ottawa Citizen Group Inc. et al.
    v. R.
(2005), 75 O.R. (3d) 590 (C.A.), at paras. 50-55;
R. v. Canadian
    Broadcasting Corporation
, 2010 ONCA 726, 102 O.R. (3d) 673, at paras.
    22-24.

[34]

Limits on freedom of expression, including limits that restrict media
    access to and publication of court proceedings, can be justified.  However, the
    centrality of freedom of expression and the open court principle to both
    Canadian democracy and individual freedoms in Canada demands that a party
    seeking to limit freedom of expression and the openness of the courts carry a
    significant legal and evidentiary burden.  Evidence said to justify
    non-publication and sealing orders must be convincing and subject to close
    scrutiny and meet rigorous standards:
R. v. Canadian Broadcasting Corp.
,
    at para. 40;
Toronto Star Newspapers

Ltd. v. Ontario
(2003), 67
    O.R. (3d) 577 (C.A.), at para. 19, affd 2005 SCC 41, [2005] 2 S.C.R. 188, at
    para. 41; see also
Ottawa Citizen Group
, at para. 54.


V

STANDARD OF REVIEW

[35]

As I have already indicated, the motion judge applied the correct legal
    principles to the facts as she found them.  Normally, this kind of exercise attracts
    a deferential standard of review:  see e.g.
Bragg Communications
, at
    paras. 36, 100-103.  However, in
Dagenais v. Canadian Broadcasting Corp.
,
    [1994] 3 S.C.R. 835, at pp. 864-65, Lamer J. for the majority held that any
    discretionary order banning publication must be consistent with
Charter
principles and that, if the order goes beyond the scope tolerated by the proper
    application of
Charter
principles, the making of the order constitutes
    an error of law.  The same analysis has been applied to sealing orders:
Ottawa
    Citizen Group,
at para. 26.

[36]

Although
Dagenais
and
Ottawa Citizen Group
both involved
    prerogative writ challenges to non-publication and sealing orders, I see no
    reason to characterize the nature of the decision differently because it is
    challenged by way of appeal rather than prerogative writ.  I note that in
Mentuck
,
    an appeal to the Supreme Court pursuant to s. 40 of the
Supreme Court Act
,
    R.S.C. 1985, c. S-26, the court, without alluding to the standard of review,
    reviewed the orders made by the trial judge using a correctness standard:
Mentuck
,
    at paras. 41-43, 46-47; see also
Sierra Club of Canada
, at para. 48.

[37]

The characterization of non-publication and sealing orders that are not
Charter
compliant as errors in law strongly implies a review of those orders on a
    correctness standard.  In my view, the motion judges decision should be
    reviewed on a correctness standard.  However, as I will explain in my review of
    the evidence, I am also satisfied that the motion judges finding that the
    orders were necessary to prevent a serious risk to the proper administration of
    justice was unreasonable on the evidence proffered by the respondent. 
    Consequently, even on a deferential standard of review, the orders cannot
    stand.

VI

SHOULD THE ORDER HAVE BEEN GRANTED?

(i)

Dr. Quans Evidence


[38]

Dr. Quan first saw the respondent in March 2010, about one month after
    Williams was charged.  He has continued to see her about once a month since
    then.  Dr. Quan described the respondent as initially devastated by the
    revelations about Williams.  She was shocked, confused, unable to sleep, unable
    to focus and she had difficulties with her memory.  The respondent felt as
    though her entire life had been turned upside down.  She found herself
    continually thinking about Williams victims.

[39]

In the weeks immediately following the revelations, the respondent could
    not stay in the family home or go to work.  Within about two to three months,
    she had returned to her home and was working full time at her former position.

[40]

The respondent has no immediate family, but does have strong support
    from a group of close friends and neighbours.  Her employer and co-workers have
    been supportive.  The respondents job is a demanding but fulfilling one.  It
    is very important to her.

[41]

Dr. Quan indicated that the respondent improved quite quickly after the
    intense initial shock of the disclosures about Williams.  She had made
    significant gains by the summer of 2010.  Dr. Quan reported continued progress
    in December 2010, despite the very intense publicity during the trial
    proceedings in October.  The respondent had wisely mitigated the impact of
    those proceedings on her by leaving the country for a holiday while those
    proceedings were ongoing.

[42]

Dr. Quan reported that the respondents physical symptoms included
    weight loss, back pain, headaches, and temporomandibular joint dysfunction
    caused by clenching her teeth.  She also exhibited depressive
symptomatology
of a moderate degree of
    severity, anxiety of a moderate degree of severity, ongoing symptoms of
    emotional shock, and certain post-traumatic stress disorder symptoms of a
    moderate degree of severity.  She had not required hospitalization, medication
    or treatment other than her monthly meetings with Dr. Quan.

[43]

Dr. Quan stressed that the respondent was very apprehensive about the
    publicity that would flow from her divorce proceedings.  Each wave of publicity
    precipitated by a court proceeding increased her anxiety and presented coping
    challenges for her.  The respondent believed that her job was threatened by the
    ongoing media coverage connecting her to Williams.

[44]

Dr. Quan believed that obtaining a divorce and related corollary relief
    was important to the respondent as it would enable her to make a complete break
    from Williams. This break was important to her emotional wellbeing.

[45]

The tenor of Dr. Quans opinion is captured in his letter to counsel in
    December 2010, his report in January 2011 and his affidavit in February 2011. 
    In the report, Dr. Quan stated:

[The respondent] is a private individual and she
    does need calm, peace and quiet in order to continue functioning normally.  She
    currently feels that she has no privacy left.  If pushed beyond her ability to
    cope, [the respondent] will definitely become more seriously ill and most
    likely incapable of working any further.  She has been successful in her
    workplace through sheer drive, determination and effort despite significant
    emotional distress and problems.  If pushed further by constant invasions of
    her privacy, there is a very strong possibility that [the respondent] will
    deteriorate and be incapable of functioning at her current level of ability.

[The respondent] is intending to seek a divorce from
    her husband.  I support this decision since it will be of therapeutic benefit
    to her.  However, I fear the added media attention this would attract would be
    severely detrimental and that it would probably result in a deterioration of
    her emotional heath.

[46]

In the letter, Dr. Quan opined:

[T]here is a very real and grave potential that her
    fragile recovery can be seriously compromised if she cannot be protected from
    the persistent, insistent and incessant efforts of the media to gain entry into
    her private life.

[The respondent] has made a very concerted and
    courageous effort to return to a normal productive life dedicated to the common
    good.  These efforts are at risk of being destroyed by the unwanted, undeserved
    and unproductive efforts of media to meddle in her private life.

[47]

In his affidavit dated February 2, 2011, Dr. Quan reiterated the same
    concerns:

[6] In particular I was concerned that [the respondents]
    precarious mental and emotional state would be imperilled if she continued to
    be the subject of media harassment regarding her private life and Mr. Williams.

[...]

[19] [...The respondent] currently has a very
    tenuous hold on her mental health and is a mere shadow of her usual self.

[20] [The respondent] requires calm, peace and quiet
    if she is to continue functioning normally, which I believe will not occur if
    her application for divorce plays out in the media.

[21] In particular, her employment has been what has
    enabled her to keep what remains of her mental health intact.  [The respondent]
    is particularly distressed and threatened that she will be unable to continue
    her current position if the media onslaught continues.

[22] I believe that if pushed further by constant
    invasions of her privacy, there is a very strong possibility that [the
    respondent] will deteriorate and be incapable of functioning at her current
    level of ability.

[48]

Dr. Quan did not offer any opinion as to whether the respondent would
    seek a divorce if she was not guaranteed the kind of anonymity and privacy she
    sought through the non-publication and sealing orders.

[49]

Dr. Quan acknowledged in cross-examination that he had virtually no
    firsthand knowledge of any of the media coverage as it related to the
    respondent.  He testified that he did his best not to read any of the newspaper
    reports that referred to the respondent.

[50]

Dr. Quan was also cross-examined about the impact of the publicity on
    the respondents employment.  He agreed that he had no contact with anyone at
    the respondents place of employment and had no knowledge of how, if at all,
    the media coverage could affect that employment.  Dr. Quan acknowledged that he
    understood from the respondents comments to him that her employer had been
    supportive during the ordeal.

(ii) 
    Assessing Dr. Quans Evidence

[51]

Counsel for the appellants argued that Dr. Quans evidence was not
    admissible in that it was based on statements made to him by the respondent. 
    Counsel submitted that without an affidavit from the respondent attesting to
    the truth of what she said to Dr. Quan, and without affording the appellants
    the opportunity to test her assertions by cross-examination, Dr. Quan could not
    rely on the respondents statements for their truth.

[52]

I do not agree that Dr. Quans evidence was inadmissible.  Dr. Quan is a
    qualified clinical psychiatrist.  He saw the respondent about a dozen times
    between March 2010 and March 2011.  He based his clinical judgment as to the
    respondents mental state on his observations of her over one year, the results
    of certain psychological tests he administered, a report from the family doctor,
    and things said to him by the respondent.  These are sources that clinical
    psychiatrists routinely look to when forming their opinions.  Dr. Quan was
    entitled to advance the opinion he did:  see
R. v. Lavallee
, [1990] 1
    S.C.R. 852.

[53]

There is, however, force to the appellants submission that the absence
    of any affidavit from the respondent significantly undermines the weight that
    can be given to Dr. Quans opinion.  Without evidence from the respondent, much
    of what Dr. Quan said in his letters and reports is properly characterized as
    speculation and assumption.

[54]

It is clear that Dr. Quans opinion as to the need for the
    non-publication and sealing orders was premised on his belief that the media
    had engaged in an unrelenting and very intrusive invasion of the respondents
    privacy beginning when Williams was charged and continuing through to the
    proposed divorce proceedings.  Dr. Quans letters to counsel and his report are
    replete with phrases like the media onslaught, the media harassment
    regarding her private life, the constant invasions of her privacy, the
    media feeding frenzy, the unwanted, undeserved and unproductive efforts of media
    to meddle in her private life and the persistent, insistent and incessant
    efforts of the media to gain entry into her private life.

[55]

There is quite simply no evidence to support any of these
    characterizations.  The respondent was clearly the person who could have spoken
    most directly to her experiences with the media and the nature and degree to
    which her privacy had been invaded by the media.  She chose not to do so.

[56]

In the same vein, Dr. Quan expressed the view that the publicity
    surrounding the proposed divorce proceeding could adversely affect the
    respondents employment which in turn could cause significant damage to her
    emotional wellbeing.  Once again, there was no evidence to suggest any possible
    harm to the respondents employment.  If the potential for that harm existed,
    the respondent or her employer were the logical persons to give that evidence.

[57]

Assuming that Dr. Quans opinion goes so far as to assert a real risk
    that the respondent would suffer the degree of emotional harm required to
    engage the public interest in maintaining access to the courts, that opinion
    rests entirely on his assumption that the respondent would be subject to media
    harassment occasioned by persistent, insistent and incessant efforts to invade
    her privacy.  These assumptions have no foundation in the evidence. 
    Consequently, Dr. Quans opinion cannot be said to provide the kind of
    convincing evidence needed to meet the rigorous standard demanded by the
    necessity branch of the
Dagenais
/
Mentuck
test.

[58]

I also have difficulty squaring Dr. Quans opinion as to the dire
    potential effect of publicity surrounding the divorce proceeding with the
    respondents reaction to the publicity surrounding the earlier court
    proceedings involving Williams.  She has endured, and I would say overcome, the
    worst of the media storm surrounding Williams.  After the intense initial
    shock, she has picked up the pieces of her life and gone about the business of
    living that life.  There is no reason to think that any publicity arising from the
    divorce proceedings will come remotely close to the publicity that surrounded Williams
    criminal proceedings at which Williams crimes and his confessions to those
    crimes were publicly examined in minute detail.  Any media attention arising
    from the divorce proceeding will surely be short-lived and hardly front page
    news.

[59]

Dr. Quans opinion is also contradicted by the unchallenged evidence
    concerning the fraudulent conveyance proceeding.  In that proceeding, the
    plaintiff, one of Williams sexual assault victims, claims that Williams
    fraudulently transferred the family home to the respondent.  The respondents
    statement of defence and the contents of her affidavit have been referred to in
    the media.

[60]

There was no evidence filed on this motion to suggest that the media
    coverage of the fraudulent conveyance proceeding has amounted to a feeding
    frenzy or has been persistent, insistent and incessant.  Perhaps, more to
    the point, there was no evidence filed on the motion that media access to the
    fraudulent conveyance proceeding and publication of material filed in that
    proceeding have in any way negatively affected the respondents ability to
    fully participate in that proceeding.  The medias reporting of the fraudulent
    conveyance claim and the absence of evidence of any adverse impact on the
    respondent are significant as there is likely to be an overlap between the
    issues in that proceeding and some of the issues that may arise in the divorce
    proceeding.

[61]

The evidence filed on the motion by the appellants of the media reaction
    to the proposed divorce proceeding also undermines Dr. Quans opinion.  On that
    evidence, a reporter from the Ottawa Citizen sought information about the
    potential divorce proceedings from the respondents lawyer.  He did not
    approach the respondent directly.  In the ensuing interview, counsel provided
    information, much of which the respondent now seeks to have cloaked in the
    non-publication and sealing orders.  That information was reported in the press
    in a matter of fact way.  There was no evidence filed on the motion that the
    media reporting of the respondents name, her intention to seek a divorce, and
    a generic description of the material that would be filed in the divorce
    proceeding had any negative impact on the respondent or had in any way affected
    her decision to proceed with the divorce action.

VII

CONCLUSION

[62]

The motion judge erred in law in exercising her discretion in favour of
    granting the non-publication and sealing orders.  The material presented by the
    respondent did not provide the kind of convincing evidence needed to satisfy
    the first branch of the
Dagenais
/
Mentuck
test.  It is
    consequently unnecessary to consider the second branch of that test.  The
    orders made by the motion judge must be set aside.

[63]

I would allow the appeal and with one modification set aside the sealing
    and non-publication orders made except to the extent that those orders were not
    challenged on appeal (see para. 7 above).  The one modification relates to the
    non-publication order made with respect to the medical information filed on the
    motion.  As indicated above (para. 6), the parties agree that the motion judges
    non-publication order referable to the medical information did not extend to
    the references to that information in her reasons.  The appellants did not challenge
    that part of the non-publication order.  I would vary that part of the order to
    provide that the non-publication order with respect to the medical information does
    not extend to references to that information found in either the motion judges
    reasons or these reasons.

[64]

The interim order made on consent at the oral argument of this appeal
    prohibiting publication of material filed or information referred to in this
    court where that material or information was subject to the orders made on the
    motion expires with the release of these reasons.  Normally, this courts order
    would take effect immediately.  However, given the subject matter of this
    order, unless it is held in abeyance for some brief period of time, the
    respondent would not have any meaningful opportunity to consider what steps, if
    any, she should take to challenge this order.  I would direct that the order of
    this court take effect 14 days after the release of these reasons.  The order
    of the motion judge and the interim order of this court will remain in effect
    until then unless otherwise ordered.

[65]

The appellants are entitled to their costs, if demanded, both here and
    on the motion.  I would fix the costs of the appeal in the amount of $15,000,
    inclusive of disbursements and HST.

[66]

The court was advised that the motion judge fixed the costs of the
    motion at $25,000 in favour of the respondent.  The parties cannot agree as to
    the appropriate order in respect of the costs of the motion.  This court is not
    in a position to fix those costs.  I would remit the matter of the costs of the
    motion to the motion judge.

RELEASED:
JAN 24 2012  DD

Doherty J.A.

I agree Robert P. Armstrong J.A.

I agree Alexandra Hoy J.A.




