2004 BCSC 1345 Mr. R. v. British Columbia College of Teachers

The Honourable Madam Justice Morrison

Reasons for Judgment

Counsel for the Appellant	Lorraine Shore
Date and Place of Hearing:	September 14, 2004
	Vancouver, B.C.

[1] This is an application by Mr. R. seeking: (1) a ban on the publication of his name in the matter before the British Columbia College of Teachers; (2) leave to commence an appeal to the Supreme Court of British Columbia by identifying himself as Mr. R.; (3) an order that all other persons involved in the events be referred to by their initials in the intended appeal; and (4) costs.

[2] The applicant is a high school teacher. On October 15, 2002, the applicant was issued a formal letter of discipline for engaging in inappropriate conduct, specifically, for use of inappropriate language in the classroom including disrespectful comments made to students, touching of a female student on the arm and wrist, and inappropriate internet communications with students.

[3] The applicant agreed he had misconducted himself, apologized for his actions, and took steps to ensure such conduct would not be repeated, including counselling and peer mentor assistance. Prior to these incidents, the applicant’s 28-year teaching record was unblemished.

[4] The applicant was the subject of a hearing before the Hearing Sub-Committee of the British Columbia College of Teachers (the “Panel”). The hearing process required the Panel to issue a Report and Recommendation to the Council of the British Columbia College of Teachers (the “College”) after the hearing. The Panel was required to direct the Registrar of the College to publish a summary of the circumstances of any decision, action taken, and reasons thereof, since this was a case in which “adverse determinations” had been made against a teacher.

[5] Mr. R.’s hearing before the Panel took place on March 1, 2004. The parties provided the Panel with an agreed statement of facts and admissions, and a joint submission on penalty, publication and costs. The Panel agreed with the parties’ recommendations that the penalty be a reprimand and that no costs be assessed. The Panel also recommended that the applicant’s name be released to the public in the summary published by the College.

[6] The recommendations relating to publication and costs were referred to the College. By letter dated June 21, 2004, the College advised it had accepted the Panel’s recommendations and ordered that the applicant’s name be published in full in the summary.

APPLICANT’S SUBMISSION

[7] The applicant seeks a publication ban in two distinct and different forums: the College summary, and the intended court pleadings. His reasons for seeking a publication ban are twofold: First, he submits that publication would hamper his ability to effectively teach the students currently enrolled in his class, and undermine efforts he has made since 2002 to ensure the appropriateness of his language and conduct. Second, he seeks to protect the health of his 84-year-old ailing mother. The applicant submits that publication of his name as a result of investigations by the College would be extremely deleterious to his mother’s medical condition. This view is shared by his mother’s doctor.

[8] The application was unopposed.

DISCUSSION

[9] The question of whether to grant the order sought involves the court in weighing the respective interests of the applicant and the public in relation to the ban. The Supreme Court of Canada has said that this assessment must consider the principle of openness in judicial proceedings, which is linked with the right to freedom of expression guaranteed under s. 2(b) of the Canadian Charter of Rights and Freedoms.

[10] In Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, at para. 23, La Forest J. explained that these rights involve the public’s freedom to access information about the courts, as well as to advance opinions and criticisms of court practices and proceedings. These freedoms, he held, fall clearly within the ambit of rights guaranteed under s. 2(b) of the Charter.

[11] The test to be applied when considering whether the right to freedom of expression would be compromised through the imposition of a publication ban was originally set out in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, and reformulated in R. Mentuck, [2001] 3 S.C.R. 442, at para. 32 as follows:

A publication ban should only be ordered when:

(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably available measures will not prevent the risk; and

(b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.

[12] In Mentuck, at paras. 34-39, Iacobucci J. issued several general comments to be kept in mind in applying the test. Iacobucci J. discussed the need to determine that the risk posed to the administration of justice be real and substantial; not to interpret the “administration of justice” so broadly as to prevent the disclosure of information that would meet the public interest; to consider other reasonable alternatives and restrict publication bans as much as possible; and to consider with due emphasis the interests of the public and the press, even where unrepresented, keeping in mind that a “convincing evidentiary basis” is required to displace the strong presumption in favour of open court proceedings.

[13] This court has addressed the issue of publication bans recently in Mitchell v. British Columbia College of Teachers, 2003 BCSC 1636 [Mitchell 1], Mitchell v. British Columbia College of Teachers (2004), 26 B.C.L.R. (4th) 147, 2004 BCSC 264 [Mitchell 2], and Mr. G. v. British Columbia College of Teachers, 2004 BCSC 626, though different results were reached in each.

[14] In Mitchell 1, the appellant, Ms. Mitchell, appealed a decision of the B.C. College of Teachers that cancelled her certificate of qualification and terminated her membership in the College. Ms. Mitchell had been found guilty of conduct unbecoming a member in having had, while employed as a teacher, a sexual relationship with a 14-year-old male student. Ms. Mitchell appealed her penalty and the decision to publish her identity in the case summary issued by the College. The appeal was allowed. Humphries J. ordered that a penalty be substituted and that the appellant’s name not be published in the case summary. Humphries J. held that while there was some value in publicizing the decision to further deter teachers from such conduct, since there was no risk of further harm or repetition of conduct, or of the school system being brought into disrepute in the eyes of the community, the appellant’s name should not be published, especially since the matter was heard almost 20 years after the relevant events.

[15] Mitchell 2 dealt with a motion for an order to seal the court files and retroactively amend the style of cause to substitute initials for the appellant’s name. After discussing the link between the right to freedom of expression guaranteed under s. 2(b) and the principle of open courts, Humphries J. concluded, at paras. 13-19, that private interest or embarrassment, even where the private interest involved the protection of one’s livelihood or reputation, is insufficient to outweigh the constitutional right of freedom of expression.

[16] To justify an exception to the general rule of open court proceedings, there must be a “public interest of social value of superordinate importance at stake”. Humphries J. dismissed the application for an amendment to the style of cause and a publication ban to protect the applicant’s identity, but did order a publication ban on any information that might directly or indirectly reveal the identity of the complainant.

[17] The conclusion reached in Mr. G. was different from that reached in Mitchell 2. Mr. G. was a teacher who was the subject of a hearing before the Hearing Sub-Committee of the British Columbia College of Teachers (the “Panel”). The Panel issued Mr. G. a reprimand, and recommended that his full name be released to the public along with a summary of the case. The Panel’s recommendations were adopted by the Council of the College. Subsequently, Mr. G. advanced an application before this Court for leave to commence an appeal by identifying himself, his children, and other primary persons involved in the appeal by their initials only. Burnyeat J. determined that the presumption of the openness of court proceedings had been overcome, and allowed the application.

[18] In so holding, Burnyeat J. distinguished Mitchell 2 on two main grounds. First, since Ms. Mitchell’s name had already been used in the style of cause in the appeal from the College’s decision, as well as in the motion to retroactively amend the style of cause, he held, the damage to Ms. Mitchell “was already done” (at para. 35), while in Mr. G.’s case it was not. Second, Burnyeat J. distinguished Mitchell 2 on grounds that several authorities were not before the court when the application was heard, thus the decision was not binding.

CONCLUSION

[19] The order sought raises two distinctly different issues: (1) should a publication ban be issued for the intended court proceedings? and (2) should a publication ban be ordered for the summary issued by the College?

[20] With regard to the first matter in discussion, whether a publication ban should be issued for the intended court proceedings, I feel bound by the decision in Mitchell 2. To determine whether the right to freedom of expression and open court proceedings would be compromised by the imposition of a publication ban, it is necessary to apply the test set out in Dagenais, as reformulated in Mentuck.

[21] In the circumstances of this case, a publication ban is not necessary to prevent a risk to the proper administration of justice. Since there is no party or intervener present to argue the interest of the public, per Iacobucci J.’s instruction in Mentuck, it is important to duly consider these interests and acknowledge the fact that open and uncensored court proceedings should be overridden only by a “convincing evidentiary basis” (at para. 39).

[22] No such evidentiary basis was present in this case. Certainly, a denial of the current application may well cause the applicant personal distress, embarrassment and professional difficulty. However, such difficulty is insufficient to outweigh the constitutional right of freedom of expression and the strong presumption in favour of open court proceedings. As Dickson J. explained in Nova Scotia (Attorney General) v. MacIntyre, [1982] 1 S.C.R. 175, at p. 185, “the sensitivities of the individual involved are no basis for the exclusion of the public from court proceedings”.

[23] In my view, the salutary effects of not granting the publication ban clearly outweigh the deleterious effects that are likely to ensue. Although this denial presents difficulties and consequences for the applicant, the denial does not detract from the applicant’s right to a fair and public trial.

[24] In contrast, the transparency and integrity of the administration of justice would be significantly injured were the anonymity of an individual litigant to be allowed to trump the public interest in freedom of expression and open court proceedings. In Re: British Columbia College of Teachers, 2000 BCSC 131, at para. 8, the court said:

While I can appreciate the desire of the intended appellant to pursue his appeal anonymously and can understand the Catch 22 aspect of disclosure of his identity in commencing the appellate process, which, in itself, would appear to defeat the purpose of the appeal, I am not satisfied the pursuit of his public interest meets and overcomes the long-established view that proceedings of courts of justice be open and universally known. As has been stated, covertness is the exception and openness the rule. . . . anonymity is not necessary here to protect an overriding public interest.

[25] The order requesting a publication ban on the applicant’s name in the intended court proceedings is thus denied.

[26] With regard to the second issue in discussion, namely, whether a publication ban should be ordered with respect to the case summary issued by the College, the order sought is granted. In the factual circumstances of this particular case, there is no risk of harm or repetition of conduct, and no risk of the school system being brought into disrepute in the eyes of the community. Moreover, the order might enable Mr. R. to mitigate some of the damages caused to his reputation and his relationship with his current students, and to better ensure his mother’s health is unaffected. Since s. 2(b) and the principles of open court proceedings are not engaged in this limited determination, a publication ban on the applicant’s name in the summary issued by the College is granted.

“N. Morrison, J.”
Madam Justice N. Morrison

Citation:	*Mr. R. v. British Columbia College of Teachers,*
	2004 BCSC 1345