Manitoba Commission of Inquiry into the Circumstances Surrounding the Death of Phoenix Sinclair

The applicants, Manitoba Government and General Employees’ Union (MGEU), The General Child and Family Services Authority, First Nations of Northern Manitoba Child and Family Services Authority, First Nations of Southern Manitoba Child and Family Services Authority and Child and Family All Nation Coordinated Response Network (Authorities/ANCR), and Intertribal Child and Family Services (ICFS), filed motions seeking publication bans for certain witnesses at the public hearings of the inquiry.

MGEU and ICFS also asked, in the alternative, that an order be granted prohibiting video or audio recording or broadcasting of testimony of social workers at the inquiry.

The Commission’s media and communications protocol provides that in the absence of any orders restricting access, the inquiry’s hearings will be open to the public. Audio and video recording and broadcasting of the inquiry’s proceedings, including live streaming, are permitted.

The applicants argued that a publication ban was necessary to protect the functioning of the child welfare system and the best interests of children.

Hughes J. applied the Dagenais/Mentuck test to determine whether or not to grant the orders sought. On the issue of the evidentiary standard to be applied, in order to determine the reality of the risk, Hughes J. states, at para. 106:

An initial question to be decided on these motions is whether the evidence filed by the applicants has established that a publication ban on the name and image of social workers is necessary in order to prevent a serious risk to child welfare system or the best interests of children, because reasonable alternative measures will not prevent the risk.

Hughes J. concludes that the evidence filed does not establish that “a publication ban is required to prevent a serious risk to the child welfare system or to the best interests of children”. He states at para. 132:

…the request by the applicants for an order prohibiting any form of publishing, broadcasting, or otherwise communicating by television, internet, radio in print or any other means the name and/or image of any witness who is or was a social worker, and the name of any social worker identified in documents produced at the inquiry, is denied.

On the question of whether to grant an order prohibiting video or audio recording or broadcasting of testimony of social workers at the inquiry, Hughes J. states at para. 152:

A public inquiry is meant to educate and inform the public and it follows that permitting broadcasting of the inquiry proceedings would serve to fulfill that aspect of the inquiry’s mandate. Were I to restrict audio and video recording and broadcasting of the social workers’ testimony in this inquiry, the result would be an inequality among members of the public in access to information about the proceedings. I cannot justify the requested restriction on media access in the absence of convincing evidence that broadcasting the testimony of social workers will cause a serious risk as required by Dagenais/Mentuck. I therefore decline to grant the relief requested in the alternative by MGEU and ICFS, for the same reasons I have declined to grant the primary relief sought.