August 20, 2008

Ted Tjaden

Anonymization of Parties' Names in Canadian Case Law?

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10 Comments on “Anonymization of Parties' Names in Canadian Case Law?”

1. David Scrimshaw says:

   August 20, 2008 at 3:14 pm

   I think adults should have much more privacy protection than they are getting. In Ontario, it is illegal for a doctor to tell me the name of a patient. Meanwhile a judge can name the parties, their relatives and others involved in a proceeding, and list all the physical and psychological health issues they are dealing with that have been brought out in the case.

   Sometimes they do this even though the health issues have little relevance to the decision being made.
2. Tim Bailey says:

   August 20, 2008 at 11:53 pm

   I would support a small, limited increase on anonymity in publicly-available information. Sometimes people are dragged into court completely against their will and, ultimately, without rightful cause.
3. John Swan says:

   August 21, 2008 at 9:45 am

   This issue has concerned me for years. I am not sure that that all parties should have their identity hidden—and if that were to happen, how would we ever remember the name of a case?—but some respect should be given to parties.

   The Ontario Court of Appeal decided a case years ago—MacKinnon J.A. was on the bench—in which they allowed the appeal of a woman who was seeking a divorce on the ground of her husband’s premature ejaculation. The husband, perhaps understandably, had not appeared on the appeal. At the end of his reasons for judgment, MacKinnon J.A. said that a copy of the reasons and the order could be served on the husband, giving his complete address.

   I wrote to MacKinnon protesting this unfairness to the husband and received a curt reply, telling me that I had no business interfering with the publication of court decisions.

   The second, and to my mind more egregious instance, occurred again in the context of a horrible divorce proceeding. A couple, the parents of adult children, were engaged in a disgraceful fight—I forget the exact issue—and should have been ashamed of themselves. In his reasons for judgment the trial judge referred to the fact that one of the children was a law student at U of T—she was in my class.

   While it is almost certain that the husband’s friends did not read the O.R.’s; in the second instance the woman’s friends and acquaintances were almost certain to read the O.R.’s.

   Neither judge had to identify (with precision) or embarrass the husband in the first case or the law student in the other—and, of course, she wasn’t even a party.

   I am not aware of recent incidents of this type so perhaps judges are more careful. It may still be worth impressing upon judges the need to be sensitive to whom they identify (and with what precision) and what they say about them. This step does not, of course, hide the identity of parties, witnesses or “collateral” parties but it may lessen the need to do so.
4. Simon Fodden says:

   August 21, 2008 at 10:56 am

   I'm of two minds about this. I agree with John Swan that some of the courts' insensitivity in family law cases is unfortunate. And I understand that as far as precedent goes parties' names are "story facts" that are not meant to be relevant.

   Yet… with respect to "story facts," because, with the exception of Quebec, we operate in a common law system that uses reported cases as a basis for law, it's hard to know what story facts you could remove as immaterial without improperly depriving later courts of the ability to fashion ratios suitable to their time and issue. Today's "story fact" is tomorow's material matter — or, to put it another way, judges don't get to dictate what their decision stands for.

   Parties' names, of course, are highly unlikely ever to become relevant or material facts in retrospect — though corporate identities might. And the distinction between private individuals and corporations is one I'd want any Privacy rule to ensure.

   There is, however, another aspect that gives me pause. And that is the importance of public decision-making by courts. It's not simply the fact that if I sue to use the state's courts I have entered the political arena in a clear way, and so cannot let my private interests alone dictate matters. There is as well a communitarian aspect, the shadow side to which is prurient curiousity and gossip about our neighbours, and the positive side to which is a level of knowing and being known by others that lets us form meaningful relationships and a sense of kinship with our neighbours — our fellow citizens. It is possible, I think, to move too far away from this in the (modern, recent) pursuit of privacy.
5. Shaunna Mireau says:

   August 21, 2008 at 11:40 am

   More than a few hundred years ago judges collected their decisions and published them to create legal precedent. The English Reports were not secret, names were named. My firm has an index to this resource. Should we stop indexing decisions to protect the reputations of those involved in litigation? Reputation and privacy are not the same.

   There are processes for parties with privacy concerns to be anonymized. Family court judgments and matters where the vulnerable are involved are often anonymized.

   "Publication bans to protect the identity of sexual assault victims and witnesses have been part of the Criminal Code since 1988." Department of Justice Canada

   The rapid growth and proliferation of social networking should be telling us that our society values openness.

   Anonymizing decisions, creating an alphabet soup of the style of cause, how will that further access to justice?
6. Laurel Murdoch says:

   August 21, 2008 at 11:41 am

   I have for some time been concerned about the ability of a child of 10 to access a site that could contain details about the, for example, marital problems of his or her friends' parents. However, I'm also concerned about Ms. Stoddart's suggestion that initials might be used for the parties involved in litigation in place of names to protect their privacy. Looking at it as a law librarian and from a purely practical standpoint this would significantly impede case law research. How long would it take to weed through all of the R. v. S.s in order to find the one you are searching for — not all the R. v. Smiths but Roberts v. Samson or Richards v. Simmons, etc.? As the body of case law builds in Canada and databases include every case, whether of precedential value or not, it is often very time-consuming to search by keywords and eliminate all the irrelevant hits. Presumably the use of initials would be limited to sites that are free to the public, such as CANLII. This would fly in the face of the stated mission of CANLII's mandate : To support the legal profession in the performance of its duties while providing the public with permanent open access to the legal heritage of all Canadian jurisdiction.. It would, however, be good news for the vendors of commercial legal databases.
7. Michele Ballagh says:

   August 21, 2008 at 1:30 pm

   Personally, I think this is taking privacy too far. It also conflicts with the principle that the courts should be open to the public. The internet should give greater access to the courts and not be the cause for limiting access.

   I recognize that some people might be embarrassed by the publication of their legal battles in court, but that has been a reality for 100's of years. Too bad. Maybe people will be encouraged to settle.
8. Sue C says:

   August 21, 2008 at 2:36 pm

   Having an open court today is different than in the past when there were no electronic databases. Previously, in order to see a judgment, a person had to go to the court or to a law library. In some parts of Canada, this meant having to get to another town (thinking of my very small hometown, you'd have to drive for hours to get to a public law library). And then you'd have to have a librarian help you find the case. This meant that, other than lawyers and judges, only those who were exceptionally keen would get the information. Now, all you have to do is punch in some names in a free database and ta da! All your information is there for anyone to see. How fair is it, really, that everything done in a trial can be found by any Joe or Jane Doe just because they felt like it. Some of the information provided by a judge in their judgment is totally irrelevant. I have seen judgments where a parties' banking account information has been provided! Why should that be available for all to see? We need to rethink how the web changes such things and if we really need all the information we say we do.
9. Catherine Best says:

   August 21, 2008 at 5:49 pm

   This issue was addressed by the Canadian Judicial Council in a report entitled Model Policy for Access to Court Records in Canada. The recommendations in that report for writing judgments are gradually being adopted and implemented by the courts.

   For example, the BC Supreme Court in 2003 stopped providing family judgments to CanLII for publication because of privacy concerns, and also stopped mounting them on the court website. However, after the CJC recommendations were adopted the judgments were written so as to be more sensitive to privacy concerns, and the court resumed putting them on its site and sending them to CanLII for publication.

   The best way to deal with this issue is to encourage adoption and implementation of the CJC recommendations by the courts.
10. Shaunna Mireau says:

    August 22, 2008 at 9:53 am

    This article from the NY Times shows an interesting perspective on this issue south of the border. It is dated August 3, 2008.