July 28, 2022
BMD et al v HMTQ 2022 ONCA
A recent decision of the ONCA, applying Sherman to uphold rejecting a ban on the name of a convicted accused physician.
“Applying the Sherman Estate test, the application judge found that the court should not bar publication of the information that the College proposed to post. The application judge found that B.M.D. satisfied, but A.M. did not satisfy, the first inquiry into whether court openness poses a serious risk to an important public interest. The application judge found that the mere discomfort and embarrassment of a justice system participant is insufficient, and that for a privacy interest to be recognized as an important public interest, the disclosure must amount to an affront to dignity and go to the person’s “biographical core”. In B.M.D.’s case, the application judge found that there is an important public interest in protecting victims of intimate partner violence who are at a real risk of physical harm. He noted that B.M.D. was put at a continuing risk of physical harm, since she had received actual threats from community members, and that she suffered a real affront to her personal dignity in forsaking her religious practices to avoid such attacks. The application judge concluded that the fact that B.M.D. was a victim of domestic violence went to her biographical core. However, in A.M.’s case, the application judge found that his privacy interests could not be classified as an important public interest, noting that he was suffering not because he was a victim, but because he is a relative of the offender.
On the second inquiry, which looks into whether the order sought is necessary to prevent that serious risk to the identified interest, the application judge found that an order banning the use of B.M.D.’s name in the proceedings and on the College’s website was the only appropriate measure. A blanket ban on the publication of the physician’s name would be a highly intrusive order that would effectively prevent the College from fulfilling its mandate of informing the public of its members’ criminal convictions. A ban on disclosing the fact that the assaults in question were committed upon the physician’s spouse would not be appropriate because it may be extremely relevant to a potential patient that the victim was the physician’s intimate partner.
On the third inquiry, which looks into whether, as a matter of proportionality, the benefits of the order outweigh its negative effects, the application judge found that the negative effects of publication on B.M.D. and A.M. were far outweighed by the countervailing public interest in the College investigating and reporting on the criminal actions of one of its professional members, the benefit to the public of knowing whether their potential physician has committed a particular crime, and the constitutionally-enshrined principle of open court proceedings. While he accepted that B.M.D. and A.M. were assured by the police officers and the Crown that their identities would be protected, those assurances could not trump the legislative requirements of the Criminal Code.
Accordingly, the application judge quashed the transferred publication ban and judicial commentary that the publication ban prevented disclosure of the physician’s name. He ordered that the College and other media may disclose the physician’s name and the specific nature of the convictions, but that B.M.D.’s name could not be disclosed. The application judge did not order a publication ban of the physician’s name as requested by both B.M.D. and A.M.”