November 17, 2020
United Kingdom of Great Britain and Northern Ireland (Attorney General) v L.A. 2020 NSCA 75
L.A. alleged she was sexually assaulted by members of Great Britain’s Navy hockey team in 2015. Four members were charged and a 486.4 ban was imposed banning publication of anything identifying L.A. Later she brought a civil action and sought to be identified only by her initials; the defendant objected. On motion, the chambers judge granted a ban.
While the Chambers Judge recognized she must consider and apply the Dagenais/Mentuck test, she was given very little affidavit evidence supporting a serious risk to the administration of justice, necessity, or salutary versus deleterious effects. In lieu of evidence the judge went on to “apply reason and logic” per AB v Bragg. She concluded a common law ban was necessary, to protect the Plaintiff from further harm or re-traumatization.
The Chief Justice of Nova Scotia, writing for the Appeal Court, allowed the appeal and reversed the common law ban. The chambers judge erred by failing to recognize the 486.4 ban covered the same information over which the plaintiff sought a common law ban. The existing 486.4 ban was, in the circumstances, a reasonable alternative measure to prevent public disclosure of the plaintiff’s identity, and a common law ban was not necessary. When information in the civil matter could identify the complainant in the criminal case, the 486.4 ban would prevent its publication.
A criminal ban does not preclude a common law ban, but must be considered as part of the Dagenais/Mentuck matrix.