November 1, 2021
Turner v Death Investigation Council et al 2021 ONSC 6625

This was a motion by the DIOC for an order sealing certain portions of its record of proceedings in this matter and seeking approval of certain redactions to other portions of the record.

This motion arose in the context of an application for judicial review by Dr. Jane Turner. Dr. Turner made a complaint to the DIOC about Dr. Michael Pollanen, who is the Chief Forensic Pathologist for Ontario. The DIOC issued a reporting letter. Dr. Turner challenges the result and seeks an order setting aside the report, remitting her complaint back to the DIOC for reconsideration and for other related relief, including a recommendation that Dr. Pollanen be removed from office as the Chief Forensic Pathologist.

The DIOC’s motion was opposed by other parties, including media intervenors, Hamilton Spectator and Toronto Star, and the the Canadian Civil Liberties Association. It was supported by certain witnesses who were interviewed as part of the DIOC’s investigation into Dr. Turner’s complaint. Other witnesses have said they have no difficulty with the disclosure of their names in the record, take no position or actively oppose the order sought.

Applicants for an order making exception to the open court principle cannot content themselves with an unsubstantiated claim that this public interest in dignity is compromised any more than they could by an unsubstantiated claim that their physical integrity is endangered. The applicant must show on the facts of the case that, as an important interest, this dignity dimension of their privacy is at “serious risk”. For the purposes of the test for discretionary limits on court openness, this requires the applicant to show that the information in the court file is sufficiently sensitive such that it can be said to strike at the biographical core of the individual and, in the broader circumstances, that there is a serious risk that, without an exceptional order, the affected individual will suffer an affront to their dignity: Sherman Estate, para. 35.

There are two distinct categories of information proposed to be subject to redaction/sealing orders under the DIOC motion:
(1) a sealing order concerning all information in the autopsy/pathology case files involving two infants, AB and CD, to which reference was made in the Complaint and which were considered during the Committee’s review and deliberations; and
(2) redactions of information regarding the identity of 17 witnesses interviewed in the course of the Committee’s investigation, the notes from which the Committee reviewed in the course of its deliberations.

A sealing order over the entire autopsy files is not necessary to prevent a serious risk to personal dignity in this case because reasonably alternative measures, i.e., the redaction of identifying information, will prevent the risk to personal dignity. The DIOC must simply do the job of redacting the identifying information from the public copy of these records with care.

The information regarding witness identities in the DIOC’s proceedings shall not be redacted from the record of proceedings.