The justice system is not about other people

I met with my client after supper on a Friday in the vestibule of a church. It was near my place and, it being a pleasant spring evening, I walked there, pushing my then-infant daughter in her stroller. He was a regular at this particular church, and Fridays were reserved for family social events.  His young children were also at the church – a rare and special occasion, authorized in this instance by the family court. The child welfare officer was due to return shortly so we chatted only briefly before he signed over his $2700 tax return and rejoined his children for the hour that remained.

The money, as you might have gathered, was to keep his account with our firm current so that we would continue to represent him and his wife in their efforts to block the province’s request to amend its protection order from temporary to permanent guardianship of the children. That was 14 years ago. I was an articling student at the time and while so much of the 9 months in which I was involved in that case is burned indelibly in my mind, for the purpose of this column I offer the anecdote as an example of how fully and unreservedly people can find themselves surrendering to the operations of the justice system when circumstances bring them within its orbit.

This man was not wealthy and, as a skilled labourer, often had to travel for weeks at a time to where the work was. His wife, not long before temporarily resident in a psychiatric facility and still under periodic observation from her supervising physician, was doing well, but not yet re-employed. By the accounts of their many professional supporters (clergy, medical and other), they, individually and as a couple, were making excellent strides and demonstrating stability and capacity previously considered by the authorities to be well beyond their grasp. But it was not enough. In light of their prior lows, the recency of their turnaround and the perceived fragility of their situation (in part having regard to the potential impacts of his work-related absence on her state of being), the province and its representatives remained convinced that the best interests of the children would be served by securing permanent guardianship as a precursor to facilitating the adoption of the children by the couple who had for over a year served as foster parents.

During the term of my involvement, dozens of players came and went. Court clerks, child welfare staff, lawyers, doctors, motions judges, therapists, neighbours, interveners and more. The only constant was the “system”. At its best, the system ensured that the best interests of the children remained at the forefront while allowing fair comment and fresh evidence from all sides. At its worst, the system would either grind down or strengthen the resolve of individuals, resulting epic battles or even dramatic capitulations in cases where simple conversation might have spared significant time and expense. Did we really need an emergency motion to determine whether the children should go trick-or-treating on Halloween?

For my clients, the system would consume all financial and most of the emotional resources at hand. There was some measure of satisfaction to be found when, following a 4-day trial, the judge determined that there were insufficient grounds to grant the province’s request and, further, that in light of the demonstrated improvement of the parents, the province should assist in re-integrating the family unit.

That result was rendered on a Thursday afternoon.  The following Monday, I started my new job as telecom policy analyst with TELUS and two weeks later I was called to the bar. From that point and for the 13 years that followed, I was employed only by multi-billion dollar companies and, for a period, an association that represented several multi-billion dollar companies. This provided me with the professional luxury of looking at the “system” as a playing field on which to gain advantage or, occasionally, to do battle. Professionally, I did not need to see it as something that overwhelms the participants or that compels complete surrender. I’m proud of the work I did and the results I achieved in that environment, but from a distance and with the benefit of hindsight, I’m better able to recognize that, professionally, I had become a stranger to the justice system as it is known and most commonly experienced by the vast majority of Canadians.

In our personal capacity, most of us will not find ourselves demonstrating our fitness as parents before a court, defending ourselves against serious criminal charges, or even involved in a large and complex civil litigation matter. But the probability that we, or those close to us, will have a brush with the justice system is reasonably high. Contested support or child custody matters, probate, tax, real estate, employment or property disputes, and certainly traffic matters, can all personally ensnare us in the web of the justice system.  These first hand experiences, perhaps more so than our professional experiences (which may not be the case for all, but is certainly the case for me), provide the insight into the system as it truly is. When your personal affairs get enmeshed in the justice system, escape or even separation is not simple. From this vantage point, we begin to recognize that facilitating access to justice is not about making things better or easier for other people. There are no other people. There is just us.

A year after that 4-day trial, I ran into the crown counsel who argued opposite. He told me that a month earlier my former clients voluntarily relinquished their custodial claim to the children and acceded to the province’s request for permanent guardianship. Their personal progress stalled and their resources depleted, the couple had apparently come to the conclusion that the best interests of their children could be met by the long-time foster family.

As a father, I often think about that day in the church vestibule and the struggles of parents that have to seek approval for the chance to spend mere hours with their child. As a lawyer, I’m getting reacquainted with the idea that life, law and engagement with the justice system isn’t academic and isn’t just something that other people deal with or that we deal with on behalf of other people. Finally, as a person – as one of us – I’m beginning to ask myself what I can do to ensure the justice system becomes more about justice and less about the system. No easy answers, but a goal worth pursuing nonetheless.

 

[This post originally appeared on Slaw.ca. See the comments here.]

Immovable object, meet irresistible force

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For over 30 years, every first-year Canadian law student has read these words: “Mr. Pettkus and Miss Becker came to Canada from central Europe, separately, as immigrants, in 1954. He had $17 upon arrival. They met in Montreal in 1955. Shortly thereafter, Mr. Pettkus moved in with Miss Becker, on her invitation. She was thirty years old and he was twenty-five. He was earning $75 per week; she was earning $25 to $28 per week, later increased to $67 per week.” To protect their privacy interests, is it too late to re-style the case P (L) v. B (R)?

I ask this question because we at CanLII regularly receive requests (occasionally accompanied by promises of legal action) from people named in decisions to remove, redact or otherwise obscure the information to protect their privacy or the privacy of their children. They do not want their most painful moments or their dirty laundry topping the list of a Google search of their name. It is not inconceivable that the next request could come from Mr. Pettkus.

On occasion we also receive calls from the Courts in circumstances where they have been alerted, for example, that someone’s divorce decision has shown up on a Google search. Whether we hear about the concerns directly or indirectly, a review of the underlying case often reveals anonymization was requested and expressly rejected.

Can you un-ring a bell?

Pettkus v. Becker, [1980] 2 SCR 834 is a foundational case on the concepts of unjust enrichment and constructive trusts, particularly in the context of domestic partnerships. Cited, as of June 2012, by Canadian courts in 880 decisions appearing on CanLII, its influence continues apace. The day after Pettkus v. Becker was argued, the case was reported in the Ottawa Citizen under the headline: “Supreme Court to decide on divorced women’s property rights”. While headlines may have varied, details of the case were no doubt widely reported across the country at the time and in countless academic and professional publications ever since.

As is common in family law matters, the personal details of the litigants in this case are laid bare, touching not only on financial and property matters, but also on behaviours, personal relations and allegations of physical abuse (which, interestingly, were mentioned in the SCC decision and not in the judgment below).

Needless to say, through the awareness of the case and the widespread availability of the details – including, as shown, in contemporaneous press reports – it is too late to put the privacy genie back in the bottle for Lothar Pettkus and Rosa Becker.  But for family decisions falling short of this level of notoriety or influence, is it desirable to attempt to un-ring the bell in the name of privacy protection through ex post facto anonymization of family law decisions?

The end of “practical obscurity” and new implications to “open court”

Over recent decades as law inexorably moved from print to digital and from “reported” to a state where effectively all cases are reported, “practical obscurity”, as some have called it, associated with limited access to legal decisions is no longer assured. You could argue that the pursuit of “practical obscurity” was always inconsistent with the open court principle, but, now lost, does that mean any hope of widespread protection of privacy for litigants has been lost with it?

Litigants, in family matters or otherwise, can seek publication bans or request that a Court require that reporting of cases be done with initials only. In circumstances where none of the many statutory directions to preserve anonymity apply, the Court must balance the interests of the parties against the imperative of open courts so that justice may be seen to be done.

A.B. v. Bragg Communications Inc., 2011 NSCA 26 offers a good summary of the open court principle and its application in family matters. For purposes of this column, I will draw on one part of that summary:

[74]         The application of the open court rules to family law matters, where privacy concerns are often paramount, was considered in one of the earliest articulations of the open court principle.  Almost a century ago in Scott v. Scott, [1913] A.C. 417, the House of Lords gave strong effect to the open court rule in the context of a matter arising under the Divorce Act.  Lord Atkinson recognized the privacy concerns which arise in divorce and matrimonial cases, but nevertheless re-affirmed the public interest in open court proceedings.  He said at p. 463:

The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.

Immovable object, meet irresistible force

The open court principle is, and should be, an immovable object in the service of the administration of justice. Protection of personal privacy interests may not yet be an irresistible force, but momentum is undoubtedly building. 

While it may be hard to tell from the non-stop “voluntary” sharing of personal information through Facebook, Twitter, Tumblr and the like, we have never been more collectively concerned about the protection of personal privacy.   In a prior Slaw post, David Canton directs our attention to a December 2011 op-ed from the Ontario Privacy Commissioner that succinctly captures why we are, or should be, concerned. The op-ed states, in part as follows:

In this day and age of 24/7 online expanded connectivity and immediate access to digitized information, new analytic tools and algorithms now make it possible, not only to link a number with a name, but also to combine information from multiple sources, ultimately creating an accurate profile of a personally identifiable individual.

One month later, a unanimous Ontario Court of Appeal in Jones v. Tsige, 2012 ONCA 32 recognized the tort of “intrusion upon seclusion” and, alluded to the guardian role of the Courts and the common law to “evolve” in the manner in which it protects privacy rights.

[67]         For over one hundred years, technological change has motivated the legal protection of the individual’s right to privacy. In modern times, the pace of technological change has accelerated exponentially. […] As the facts of this case indicate, routinely kept electronic data bases render our most personal financial information vulnerable. Sensitive information as to our health is similarly available, as are records of the books we have borrowed or bought, the movies we have rented or downloaded, where we have shopped, where we have travelled, and the nature of our communications by cell phone, e-mail or text message.

[68]         It is within the capacity of the common law to evolve to respond to the problem posed by the routine collection and aggregation of highly personal information that is readily accessible in electronic form. Technological change poses a novel threat to a right of privacy that has been protected for hundreds of years by the common law under various guises and that, since 1982 and the Charter, has been recognized as a right that is integral to our social and political order. [emphasis added]

Where do we go from here?

No answers from me following this cursory overview (indeed, I’ve only spoke of published decisions and haven’t weighed in on electronic access to court dockets or on reporting on in-progress matters), but I would like to hear your thoughts.

  • Does the current model where adjudicators address the issue on a case-by-case basis suffice?
  • Should all courts pursue a Quebec model where effectively all family cases are anonymized?
  • Does anonymization of the published judgment matter if the court file remains accessible?
  • What other considerations are relevant?

I look forward to your comments and insights.

[This post originally appeared on Slaw.ca.  Check the comments here]