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]

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