“A request for an order sealing the entire motion record or, in the alternative, for an order prohibiting the publication of any information that would identify the applicant by name was considered by the Ontario Court of Appeal in M.E.H. v. Williams, 2012 ONCA 35 (CanLII). That case involved an application for a divorce and corollary relief brought against David Russell Williams (“Williams”). Williams was a colonel in the Canadian Forces and was charged with first-degree murder, sexual assault and forcible confinement, and 82 counts of break and enter. The court described the allegations as “stunning in their depravity.” Williams pleaded guilty to the charges and was sentenced to life imprisonment.
There was widespread public interest in the criminal charges and prosecution of Williams. That interest generated intense media coverage. Williams’ criminal acts and the charges came as a shock to the applicant who learned for the first time that her husband was “a sexual predator and cold-blooded serial murderer.”
In the Williams application to seal the court file, the court was provided with an affidavit from the applicant’s treating psychiatrist who identified a “real and substantial risk” to the applicant’s mental well-being if the media was allowed to identify her by name or to publish details of financial and personal information routinely found in divorce proceedings. The application granted by the trial judge was considered by the Court of Appeal.
The motions judge made a sealing order and followed the two-step approach set out in a series of cases from the Supreme Court of Canada commonly referred to as the “Dagenais/Mentuck Test” and is stated as follows:
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. (R. v. Mentuck, 2001 SCC 76 (CanLII), [2001] 3 S.C.R. 442 at para. 32)
In Williams the applicant put forth evidence that pubic access to the court file could pose a risk to her mental health. Despite that evidence, the Court of Appeal granted the appeal from the order made by the lower court. In its reasons, the Court of Appeal referred to the analysis made by the lower court which recognized that the order sought was “an extraordinary one” which, if granted, would compromise the open court principle which the lower court described as “one of fundamental importance… to our democratic society.”
Williams expanded upon the important features of the first branch of the Dagenais/Mentuck Test and the court stated that for a publication ban and related relief to be ordered: i) there must be a public interest at stake: the order must be necessary to prevent a serious risk to the proper administration of justice; and ii) the court must assess whether the serious risk to a public interest can only be addressed by some form of non-publication or sealing order.
Williams requires that before applying the second part of the test, the court must be satisfied that there is, in fact, a serious risk. In assessing the seriousness of the risk, the appellate court stated:
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.
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. [citations omitted] (M.E.H. v. Williams at paras. 29-30)”