Canada: Public Justice Or The Right To Anonymity: An Equitable Balance

The Charter of Human Rights and Freedoms ¹ and the Civil Code of Québec specifically recognize a person’s right to privacy as well as his or her right to the safeguard of his or her dignity, honour and reputation. These laws also recognize the public nature of hearings before a tribunal, wherever they may be held, unless the tribunal decides to sit in camera in the interest of morality or public order or where family matters are involved.

The Civil Code of Québec and the various statutes respecting the protection of personal information recognize the principle of confidentiality of information about a natural person and which enables this person to be identified.

What happens to the person’s right to privacy when he or she is forced to take legal action before the courts of civil jurisdiction to exercise or assert his or her rights? Does he or she necessarily waive the possibility of maintaining the privacy of the situation that brings him or her into the spotlight?

Pursuant to the Code of Civil Procedure ² , a person who refers a matter to the court must, in his or her written declaration to institute an action, state his or her name, domicile and place of residence as well as the object of the proceeding and its causes, a wide array of information about the person and which enables him or her to be identified. This communication of information is generally public in nature because court hearings are in and of themselves public, unless the court decides to sit in camera in the interest of morality or public order.

The principle of the publicity of legal debates is based on the need and necessity, in a free and democratic society, to control the exercise of judicial power because world history is riddled with examples of abuse or excess of power ensuing from justice meted out behind closed doors.

The fundamentally public nature of justice coupled with freedom of speech and freedom of the press are privileged tools to disseminate information, give food for thought and stimulate discussion. It is therefore not surprising that the courts are constantly concerned about protecting these values.

The review of decisions rendered by our courts over the last ten years, with regard to the right to anonymity or to in camera hearings, shows the constant pursuit of an equitable balance between a person’s fundamental rights and society’s. This pursuit always takes place in light of the basic principles summarized in the Court of Appeal’s 1997 decision in Michaud c. Turgeon:

Where the debate in itself is public in nature, given the issues in dispute ⁴ or the parties involved ⁵ , the priority objective of the public nature of justice outweighs the important, but less urgent, objective of protecting the privacy of just one individual. The citizen who exercises such a recourse must know that in so doing he or she in some way, from the outset, waives a portion of his or her privacy to the benefit of the common good.

When the debate focuses on purely private interests, the situation varies depending on the particular facts at issue.

Thus, where the allegations set out in the proceedings or the evidence adduced in support thereof is damning or serious with regard to the perverse effects that the public nature of the debate may entail for one of the parties to the dispute ⁶ , or where the nature of the debate is sensitive ⁷ , the courts do not hesitate to render orders to protect privacy to the extent they are helpful, even if they are not an ideal remedy ⁸ . In all these cases, they do it however by trying to curb, as much as possible, the prejudicial effects of such measures ⁹ .

However, where the evidence is not damning ¹⁰ , the allegations are vague, leave much to be desired ¹¹ or where the entire matter seems superficial ¹² and not too convincing, the courts are more reluctant and, in that case, the public nature of the debates is distinctly privileged and, in certain cases, the protective measures sought are denied.

In any event, the facts of the cases that are alleged or proven represent the material upon which the courts will base themselves to rule ¹³ . This material, coupled with the values sanctioned by society on a given date, influence the balance between, on the one hand, the right to privacy and, on the other hand, the right to public justice. This balance is not static; it is profoundly dynamic.

1 Charter of Human Rights and Freedoms, R.S.Q. c. C-12.

2 Code of Civil Procedure, R.S.Q. c. C-25

3 Michaud c. Turgeon, J.E. 97-1339 (C.A.)

4 B. (B.) c. Québec (Procureur général), J.E. 98-227; [1998] R.J.Q. 317 (C.A.)

5 X. c. Société canadienne de la Croix-Rouge, [1992] R.J.Q. 2735 (C.A.)

6 D. (J.L.) c. Vallée, J.E. 96-1978 (C.A.), [1996] R.J.Q. 2480; G. (M.) c. Gazette (The), [1997] R.J.Q. 7; J.E. 97-1.

7 A. c. B, C.A. Montréal, No. 500-09-001 495-894, August 20, 1990, JJ. Monet, Rothman, Tourigny (AZ-00011114); Michaud c. Turgeon, J.E. 97-1339 (C.A.); Montréal (Service de police de la Communauté urbaine de) c. Commission des droits de la personne et des droits de la jeunesse, [1998] R.J.Q. 2213 (T.D.P.Q.); (D.T.E. 98T-882 and J.E. 98-1718); D.T.E. 98T-908 and J.E. 98-1747 (C.A.); J.E. 99-374 and D.T.E. 99T-146 (C.A.); Commission de droits de la personne et des droits de la jeunesse c. Montréal (Ville de), J.E. 2000-91 (T.D.P.Q.) and D.T.E. 2000T-46.

8 G. (M.) c. Gazette (The), [1997] R.J.Q. 7; J.E. 97-1.

9 Montréal (Service de police de la Communauté urbaine de) c. Commission des droits de la personne et des droits de la jeunesse, [1998] R.J.Q. 2213 (T.D.P.Q.); (D.T.E. 98T-882 and J.E. 98-1718); D.T.E. 98T-908 and J.E. 98-1747 (C.A.); J.E. 99-374 and D.T.E. 99T-146 (C.A.).

10 Viau et 133693 Canada Inc., 1994 CALP 1264-1272 Jurisélection Vol. 6, No. 16, J6-16-12.

11 B.R. c. Létourneau photographie Inc., J.E. 2000-961 (S.C.).

12 Dionne c. Tremblay, J.E. 99-1134 (C.A.).

13 B. (B.) c. Québec (Procureur général), J.E. 98-227; [1998] R.J.Q. 317 (C.A.).