Revisiting Publication Bans: MEH v Williams (2012)

Every tragedy has private dimensions to which the public is not privy. But should it be? In MEH v Williams, 2012 ONCA 35 [MEH], M.E.H. (respondent), the wife of former Col. David Russell Williams of the Canadian Armed Forces, sought a court order sealing the entire record of divorce proceeding she intended to bring against her husband. Mr. Williams did not oppose the motion, and Mackinnon J. granted a temporary sealing order (MEH v Williams, 2011 ONSC 2022), even if narrower than what M.E.H. requested. Ottawa Citizen and CBC have been granted intervener status and are the appellants on this motion.

In October 2010, Mr. Williams was convicted of 82 charges, including forcible confinement, sexual assault, and first-degree murder, for which he is serving two concurrent life sentences. Mr. Williams has not been diagnosed with medical illness, and is a self-admitted sadosexual serial killer. He has been stripped of his medals, and his uniform was burned for the first time in Canadian military history. The events of his case continue to generate considerable media interest.

Did the trial judge err in her determination that M.E.H. was entitled to a sealing order? The respondent submitted that her psychiatric evaluation demonstrated there would be

“a real and substantial risk to [her] well-being 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…”

She argued that any deleterious effects in upsetting the open court principle were outweighed by concerns about her mental health as she proceeds through what is essentially a private matter. The appellants have argued that the psychiatric evaluation is inadmissible, and even if it were admissible, it would not be sufficient to warrant a sealing order.

The Supreme Court has created (Dagenais v. Canadian Broadcasting Corp., [1994] 3 SCR 835 [Dagenais], at p 891) and fine-tuned (R v Mentuck, 2001 SCC 76 [Mentuck], at para 32) what is now known as the Dagenais/Mentuck test to determine whether a publication ban should be ordered:

(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.

The open court principle is grounded in the freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms, which covers freedom of the press and media. Limitations or infringements on such rights and freedoms can be justified under section 1 of the Charter, with the onus on the party seeking the limit to produce significant evidence as validation.

Dr. Quan’s letters to the appellants were hyperbolic (e.g. “constant invasions of her privacy,” “the media feeding frenzy,” “the unwanted, undeserved and unproductive efforts of media to meddle…”), and it seems that his choice of rhetoric coloured the value of his medical opinion. Although Doherty J., author of this decision, disagreed with the appellants on the point that the psychiatrist’s evaluations were completely inadmissible, he found that, absent an affidavit by M.E.H. affirming the doctor’s findings, it cannot be given much weight as it is “properly characterized as speculation and assumption” (para 53). Doherty J. characterizes the doctor as “a qualified clinical psychiatrist” (para 52) who is “entitled to advance the [medical] opinion he did,” but goes on to write that the doctor’s unfounded characterization of “the media onslaught” (para 54) led to his medical opinion that M.E.H.’s mental health would suffer in a situation where the divorce proceedings were accessible by the media. Given that the judge found no material evidence that supported the respondent’s claims of “media harassment,” he did not find that the respondent’s argument could pass the first branch of the Dagenais/Mentuck test, overturning the trial judge’s decision.

It is noteworthy that the court pointed out (para 60) that counsel for M.E.H. did not introduce evidence validating Dr. Quan’s assessment of the media. Was there any evidence? Those involved in such a high-profile case are not usually spared the scrutiny of the media. Would submitting an affidavit have been enough to change the decision?

The Court of Appeal has already cited MEH three times in subsequent judgments, two of which, written by D.M. Brown J., use the same phrase in reference to the rule: “Our Court of Appeal has stressed the need for a solid evidentiary basis to support any sealing order or publication ban.” (Latvian House Toronto Limited v. Fraternity “Lidums”, 2012 ONSC 1195 at para 14; Cle Leasing Enterprises Ltd. (Re), 2012 ONSC 1301 at para 24). The third case, A.B. v CD., 2012 BCSC 267, cites MEH at para 34, emphasizing the importance of open court proceedings as a public interest, and that transparency is not something private individuals can bargain about (para 116). At least in Ontario, Dagenais/Mentuck requires “convincing evidence” held to a “rigorous standard.”

Just in case M.E.H. was to ever forget, this precedent looks like it’s here to stay.