Pub Bans and Sealing Orders

AB v United Kingdom (Attorney General) 2019 NSSC 289

Plaintiff alleged she had been sexually assaulted by several members of the British armed forces. Her identity was protected in the ensuing criminal proceedings per the 486.4 ban on publishing the identity of sexual assault victims. The plaintiff conceded the 486.4 ban did not extend to her civil action, and sought only to protect her identity. She did not seek to seal the record or exclude the public from the courtroom.

The defendant opposed, taking the view that the evidence filed in support failed to meet the ”Dagenais/Mentuck” test. The media did not intervene, although a CBC reporter in the courtroom advised that CBC was not opposing the order.

The only evidence on the motion was plaintiff’s counsel’s own affidavit. On the issue of how publication of the plaintiff’s identity would affect her, he deposed she would be exposed to “unwanted attention that would follow her for the rest of her personal and professional life.”

The court seemed to recognize that this statement was hardly evidence, and did little to meet the necessity component of the test, but remedied the problem by concluding that a court, “can determine whether there is harm under part one of the test by applying reason and logic.”

The judge went on to infer that victims of sexual assault may be re-traumatized if identified, and the public attention on the criminal trial would follow into the civil case. The court also considered the rationale for the ban in criminal proceedings, “now deeply rooted in Canadian Law,” and how failure to anonymize the civil matter would undermine the criminal ban. “Access to the court should not have to come at such a high price for this Plaintiff.”