June 24, 2021
United States v Meng 2021 BCSC 1253
Wanzhou Meng applied for an order banning the publication of the content of documents she received from HSBC and had filed with the Court. In a fourth application under s. 32(1)(c) of the Extradition Act, filed on June 7, 2021, Ms. Meng will seek to adduce the documents in the hearing at which she is sought for extradition by the United States on charges of fraud.
The most recent authoritative expression of the governing legal principles is in Sherman Estate v. Donovan, 2021 SCC 25, issued shortly before the hearing of this application. There, the Supreme Court of Canada reviewed the legal requirements for any discretionary limit on the openness of courts to the public and the media, such a limit including a ban on publication based on a court’s inherent jurisdiction.
Justice Kasirer for the Court confirmed that the open court principle arises from the constitutionally protected right of freedom of expression. The open court principle also presumes that members of the media may report freely on matters before the courts, in order to carry out the important role of conveying information to the public. These effects help maintain and contribute to the fairness and accountability of the justice system: paras. 1-2.
Nonetheless, there are circumstances that justify a restriction on openness, the Court confirmed. These arise where: there is a serious risk to a competing interest of public importance; the risk cannot be prevented through alternative means; and the benefit from restricting the openness outweighs its negative effects (para. 3):
[…] Where a discretionary court order limiting constitutionally‑protected openness is sought — for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order — the applicant must demonstrate, as a threshold requirement, that openness presents a serious risk to a competing interest of public importance. That this requirement is considered a high bar serves to maintain the strong presumption of open courts. Moreover, the protection of open courts does not stop there. The applicant must still show that the order is necessary to prevent the risk and that, as a matter of proportionality, the benefits of that order restricting openness outweigh its negative effects.
Justice Kasirer thus recast the longstanding “Dagenais/Mentuck test” (for a discretionary limit on court openness), which had been expressed as a two-step inquiry. However, he emphasized that the essence or substance of the inquiry remains the same. The focus of the inquiry is on the former test’s three core prerequisites (as described in such decisions as Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41) in order to help clarify the burden on the applicant seeking an exception to the open court principle (at para. 38):
The test for discretionary limits on presumptive court openness has been expressed as a two‑step inquiry involving the necessity and proportionality of the proposed order (Sierra Club, at para. 53). Upon examination, however, this test rests upon three core prerequisites that a person seeking such a limit must show. Recasting the test around these three prerequisites, without altering its essence, helps to clarify the burden on an applicant seeking an exception to the open court principle. In order to succeed, the person asking a court to exercise discretion in a way that limits the open court presumption must establish that:
(1) court openness poses a serious risk to an important public interest;
(2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,
(3) as a matter of proportionality, the benefits of the order outweigh its negative effects.
Only where all three of these prerequisites have been met can a discretionary limit on openness — for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order — properly be ordered. This test applies to all discretionary limits on court openness, subject only to valid legislative enactments (Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41,  2 S.C.R. 188, at paras. 7 and 22).
Justice Kasirer also explained that the determination of whether an asserted interest is of public importance can be done in the abstract by reference to general principles extending beyond the specific circumstances of the case. However, the determination of whether there is a serious risk to a public interest must be done in context because the answer involves a fact-based finding. These two inquiries are qualitatively distinct and therefore separate. An order may thus be refused if there is an important public interest at stake, but no serious risk on the facts, or, conversely, if there is a serious risk to an identified interest, but the interest does not have the necessary important public character as a matter of general principle: Sherman Estate at para. 42.
…the first, and threshold, requirement of the Sherman Estate test is not met. This is because the evidence and circumstances do not establish that an important public interest is engaged in relation to the potential publication of the contents of the HSBC documents, or that publication would place such an interest at serious risk.
Ms. Meng’s application for a ban on the publication of the contents of the HSBC documents is dismissed.