 Okay, I'd like to welcome everybody here to the latest installment of the Eminent Speaker Series put on by the Law and Technology Institute here at the Law School. My name is Rob Curry. I'm the director of the Law and Technology Institute and this is the kind of thing we do. We try to provide a space for conversation about interesting topics involving law and technology and how technology intrudes upon and facilitates regulation in every aspect of our lives. So we study it, we're interested in it, and we're glad that you are too. It's nice to have a robust crowd here today. The symposium is going to be, as you know, I'm sure about the A, B, and Bragg case. Very significant case coming out of our courts here in Nova Scotia, and I'm astonished in a way that we've had such a good opportunity to put on something like this. So I was saying to our speakers at lunch today that if I were to put on a seminar about this case at a place in Toronto or in Vancouver, I would invite the same people. We've got them all here in Halifax, and again, a major Supreme Court of Canada decision on an area of significant public interest and a controversial one as well. And I don't think our speakers will shy away from being controversial either today. And if they do, I would ask you folks in the question and answer session to be controversial and make sure we get some good conversation happening. So I'm going to introduce our speakers, somewhere I have paperwork about them. Oh, yeah, there it is. I'll introduce them in order of speaking. Most of them will be well known to a good number of you to begin with, but my immediate left is Michelle Awot. Michelle is a partner, a member of McGinnis Cooper's Litigation Business Students, so she's at that institutional law firm here in Halifax. Michelle provides advice and representation to businesses and business leaders in the areas of risk management, dispute avoidance strategy and dispute resolution. She is a distinguished practitioner of the Halifax Bar now for a certain number of years, very active with the CBA, a well-respected barrister before the courts, and one of my old bosses. So I'm very delighted to have her here today. Next to Michelle, you'll find Professor Wayne McKay, who is known to a number of you, difficult to go through Wayne's honors, so I'm just not going to bother. Otherwise, other than mentioning the Order of Canada, several years ago, he has long and distinguished career as a professor here at the law school, as well as an educator on legal matters in the media and in the public eye as well. And one of his most recent endeavors, of course, and I guess the one that brings him here today, was his role as chair of the Cyber Bullying Task Force that was assembled by the government of Nova Scotia in a significant and fairly visionary move on their part, I think just to do it and then to get the right people for the job. And the Task Force's report, of course, had a major impact on the dialogue and really started up some of the dialogue about cyber bullying in Canada and in North America. And Professor McKay's report was cited by the Supreme Court of Canada in the A.B. and Bragg case, so he's bringing some unique insight on that in advance as well. And on the unique insight, and here I am, introduced Michelle without mentioning that she was, of course, counsel for A.B. for the anonymous youth in the A.B. and Bragg case, which is why she's here, so great stunning oversight of my part. I would have told them that. You would have. On the far end we have Jim Rosseter. Jim is a journalist by trade and a lawyer by preference. He has a journalism degree from Carleton University and worked as a journalist for some years before coming to law school, had the misfortune of being my classmate, and therefore isn't able to extricate me from his life, and I occasionally ask him to do things like this, which I'm delighted to do. Jim was another distinguished member of the bar here in Halifax, practiced for some years at what is now called Whitwire Home, before undertaking his current incarnation as counsel to Parks Canada. So Parks Canada cyberbullying, what's that all about? Jim is also the author of the only, well I suppose when it's the only text, it's the leading text, but it is the leading Canadian text on publication bans and that end of media law. So Jim brings an enormous amount of expertise to this conversation and to the debate that will be had. So what we're going to do is hear from each of our speakers for approximately 20 minutes, at which point I will return to the podium and moderate a bit of discussion. And when I say moderate, what I mean is you should direct your questions to whichever member of the panel you wish. I will repeat the question for the benefit of the camera and the microphones because the session is being recorded, it's not being broadcast at the moment, so if that's bothering you don't worry about it. It is being recorded for a webcast later on. We'll probably broadcast it in a couple of different ways. So if you fall asleep in the middle, at least you'll be able to click somewhere in the law school website within about a week or two and you'll be able to find out what you missed. So thank you very much, I'm delighted to have you folks here and I'll surrender the podium to Michelle. Thanks everybody, good afternoon. It's always easier to stand at a podium and talk about cases where you have succeeded on behalf of your clients than those where you have not. Although if I was standing here a year ago, I would tell you how we had lost at both the Supreme Court of Nova Scotia level and the Court of Appeal level. Essentially for the same reason, although the Court of Appeal did us the favor of giving us three or four other reasons why we were wrong. But the Supreme Court of Canada, I say, saw the light. And in saying that, I'm probably satisfying Rob's request for controversy. Not surprisingly, I think the Supreme Court of Canada got this right, has not done anything dramatic that is going to ruin the democratic principles that our society has succeeded on for so many decades. Let's go back though and I'll just briefly go over the case and what it was about for those of you who haven't read it or haven't read it recently. Our client, now probably 18, at the time she was 15 years old, was a Facebook user like many 15 year olds, and learned of a profile allegedly about her appearing on the internet and saw the profile. It used her name with one or two letters changed. It used her photo, but the balance of the things you fill out on the template, I'm not a Facebook user, but I've seen it. The balance of the things you fill out like the music you like and other things you like to do were all about mostly about sexual preferences and her physical appearance, saying she was fat, things like that. She was devastated and her father got in touch with me to see if there was anything that they could do to try and determine who had done this. The reason her father knew to call me is that I had had a case about six or eight months earlier where the fire chief and deputy fire chief for the HRM had been commented upon on the coast website. The comments were anonymous. Obviously everyone knew who those ones were about. The chief and deputy chief's names were used, but we had been able to get an order from our court requiring the coast to give us information that would allow us to, after a few more steps, identify those people. So that attracted some publicity, CD, A.B.'s father read that and that was why he called. So we looked at things and we're fortunate enough that Facebook, when we asked them, quickly gave us the internet protocol address from where the fake profile had originated. David Fraser, one of my colleagues is in the audience and he was the master behind all of that and then also able to, I guess, reverse look up for one of a better phrase and determine that that IP address belonged to Eastlink. And so Eastlink break communications. We knew who had information about what customers' internet address this came from. So we made an application to the Supreme Court, almost akin to the Fire Chief's application, to get an order requiring BRAG communications, which is the owner of Eastlink, to tell us who's the customer. BRAG took no position at any point in time. They basically said, look, our hands are tied because of our privacy policies and obligations. You bring us an order, we'll give you the information. However, two members of the media, one represented by Mr. Parrish, sitting out in your audience, and another, the Chronicle Herald intervened because the second thing we had asked for was the order that was ultimately what the Supreme Court of Canada ruled on, allowing AB to proceed to uncover this customer information using her initials and also to ban publication of the content of the fake Facebook profile. The reason for using the initials is obvious. The reason for the limits on publishing the content was, at the time, no one knew how broadly disseminated the fake profile had been. And it was in many people's estimation, mine included, pretty memorable. And so even using the initials, the contents of the profile were reproduced in media reports. Anyone who saw it, we feared, might recognize it, go back to it in their history if they still had it. And the effort to anonymize AB with the initials would be fruitless. So that was the reason for the dual request for anonymity. We gave the notice necessary to all who have signed up on the electronic service that our courts allow. And as I mentioned, global television and the Halifax Herald intervened and opposed the anonymity applications. Just fast forward for a moment, Bragg, as I said, never took a position. And in fact, we were able to get the order at the Supreme Court level that compelled Bragg to give us the customer information. However, that order was stayed until the issues about the anonymity were resolved. The order was never part of either level of appeal. So the order that compelled Bragg just sort of sat in limbo while the appeals that ultimately led to the Supreme Court of Canada decision proceeded. So Justice Tidman, or sorry, Justice LeBlanc, I was thinking about Justice Tidman this morning on another matter, Justice LeBlanc heard the Supreme Court of Nova Scotia motion ruled against us on principally the basis that we had not filed any evidence indicating that AB had suffered harm as a result of these events or might in the future suffer harm. And that was the end of that. So we appealed and proceeded before Justice Saunders, McDonald, and I think it was Oland, just one second, Oland, yeah. All of whom are parents, by the way. And I thought as a parent that this was a pretty clear, quite simple question and quite reasonable request on behalf of a 15-year-old. However, the Supreme Court or the Nova Scotia Court of Appeals similarly denied our request to proceed anonymously and held that no because of the absence of evidence and a few other reasons. If you read the decision, we weren't going to be allowed to get the customer identifying information from Bragg without AB using her real name on the order that we took to Bragg. So we got instructions to apply for leave to the Supreme Court of Canada. And my colleague Jane O'Neill gets full credit for the leave motion. She did a fantastic job, and we were granted leave. And then we proceeded to work on the appeal, which was heard in May. And as you all know from the September decision, the Supreme Court of Canada agreed with AB that in fact, because she's a minor and that she should be entitled to these protections and ruled that essentially children as a class in our society are an inherently vulnerable group of people. And that you don't have to demonstrate that one particular child is going to be harmed by cyber bullying, and the events that gave rise to this case, that I love the quote, it's as a group and not by temperament, I'm paraphrasing badly, but that the children are found to be vulnerable. So what it really meant was we didn't have to file an affidavit or other kind of evidence, particularly about AB, saying this girl either has suffered this harm or might in the future suffer it. One interesting thing I always found is that there were authorities, there still are authorities out there predating the Supreme Court of Canada, where anonymity protections had been granted without any kind of affidavit evidence. None of the levels of court that we dealt with addressed those and even made an effort to distinguish them. One authority from Alberta, the affidavit evidence that was filed, I considered to have absolutely no evidentiary value. It was essentially, it was either a parent or friend, saying, you know, I am worried that sometime in the future this person, you know, might suffer some harm as a result of these events. Well, I don't think there's a parent on the planet that couldn't file an affidavit like that. But as I say, I think from an evidentiary point of view, and I welcome the other people's obviously thoughts on this, it has no value. Like postulating something like that in the future is, you know, it's a nothing in my view. And again, that was another argument that we made in the Nova Scotia courts that wasn't addressed at all in terms of whether there was any evidentiary value to that. So although some commentators have suggested that up to this case, the authorities were consistent, I don't think that's actually accurate. So obviously, AB is very pleased. We do in fact now know who the bully is, but the case continues. So not this particular case, because of course it was just the investigatory stage, but the dealing with the bully continues. I can advise you of that much. And the balance of it, you'll just have to wait and see on. I'll turn it over to you, Wayne. I'm in the traction. That's right. Stay tuned. OK. Thank you very much, Michelle. And I guess showing my law of credentials, of course, I had to come up with the title. It's not particularly great, but I'm like, you know, there's no app for that or anything like that. But the title is AB versus Bregg, Rethinking Privacy, Open Courts, and Access to Justice. And I'll try to develop in the short time I have. And Rob, you can keep me on track here of why the access to justice part. First of all, thanks to Rob for inviting me for a second time, which is either a good thing or I need remedial work, because I did a version, not a version of this, but I did the Eminence speaker series last year as well, I think. So I appreciate that, and maybe it's remedial. Secondly, a comment I made when I released the report is kind of somewhat true, which is not such a bad thing, which is like I'm an actor who's now typecast. I basically are Mr. Anti-Bullying, Anti-Cyber-Bullying, and other things I've done have kind of paled into insignificance, so that's fine. That might have happened anyway with or without cyberbullying. And a sort of third introductory point, cyberbullying, of course, continues to be a very hot topic and a kind of dark underbelly of the world of internet, and that's still very much an issue that's out there. Second little quick self-indulgent introductory point. This case is significant for me, because for the first time, not the first time I was cited in the Supreme Court account, it was the first time they were cited and actually agreed with me. In two other occasions, they cited me to disagree with me, so it's, as you said, always kind of better if they agree with you, so that's good, which kind of reminds me of a great title, speaking of titles, my colleague, Bonne Black, did a piece, I think for the Dalla Law Journal a long time ago, called Did You Mention My Name, which was an account of people who got cited by the Supreme Court and so on, so commenting on the egos of profs and so on. Anyway, what I decided to do for the piece is to try in the short time I have to talk about some themes that emerge from the case. There's so many things one could do, but I'm gonna talk about some themes that I see as critical ones emerging from the case and hopefully stir up some discussion. The first one is perhaps an obvious one, the pervasive harm of bullying and cyberbullying. And we had some discussions on this over lunch and I think most of us agree, and I think Michelle would as well, that the harm question was very much at the center of the Bragg case, and particularly the proof of harm, whether or not it had to be proven. So that's clearly a major theme on harm and how it gets proven in this case. And without going into the details, which is in the report and in the Senate report that's now come out, lots of evidence out there that cyberbullying is particularly harmful and that it's harmful in many ways because of the frequently anonymous nature of the bully, the pervasive nature of the internet, that it's there permanently, that it follows you home, all those kinds of things. So that's pretty clearly there. One of the interesting and gratifying points for all of us who put work into the task force is in I think paragraphs 20 to 24, four paragraphs of a 31 page judgment, they basically quote and rely on the report, essentially for the proof of harm, which we had some debate and legally, that's a rather interesting thing which we can get into later on, but there will come to judicial notice and other things later. But in any ways, simply as a fact, that's pretty well what they did. And citing somewhat obvious things I suppose, obviousness as suicides, the very high profile suicides, the Amanda Todd, which got national attention, the Nova Scotia suicides that in part led to the task force, which didn't get as much national attention, but were very significant as well. And this is quoted in the case itself, loss of self-esteem, anxiety, fear, dropping out of school, health issues, all those kinds of things. And certainly it was a not very positive eye-opening experience in the task force to see how really negative bullying and cyberbullying in particular is for the victims of that process. So they cited that. One of the quote, I think paragraph 22 or so, she talks, she quotes the report saying, it's an unsupervised public playground. And again, we could have some debates about there's some degree of supervision, but not a whole lot. So in some ways, and I thought about putting a lot of statistics, but I won't, I'll just give you a few on the harm factor that there is a lot of evidence supporting that cyberbullying is harmful. I think there's the right 252,000 cases of bullying per month in Canadian schools. Pretty one in four. These are various people debated, but one in four children are likely to be bullied or cyberbullied in some form. Our online survey identified as high as 80% who thought it was a problem. And interestingly, young people had a higher percentage thinking it was a big problem than older people. They were a bit more in denial. So there's lots of other statistics, but it's clearly a big issue. The interesting legal question is how that was the proof element, but that was kind of taken away. We'll come back to that. So that's the first point, the harm point. Second point, judicial notice off objective harm need not prove in each case. And I think from a kind of legal point of view, that's one of the really big questions. And perhaps one of the legacies of potentially of AB versus Bragg is that in effect, without ever using the terms judicial notice and Jim and others may comment further on that, they, she basically did take judicial notice that a class of people were harmed by cyber bullying in that class of people are children, but did not require as an exception to the open court rule as normally was the case and as was applied by the two levels of court in Nova Scotia that the person seeking that anonymity has to prove that. She said, basically said, well, more or less said not quite a little more elegantly, this it's obvious. And it's particularly obvious because of my report, which we talked about, which is since I think the official version of judicial notice is you only can take account of a sort of highly respected and authoritative authors. I guess by implicitly I've become that. They didn't talk with that. The other, one of the questions that the judicial notice question raises, I think, is well too, looking back, are there other cases where they've taken judicial notice of a whole class of people who are victims? And while in a somewhat different context, a couple of thoughts occurred to me in preparing for this. One, I think it was the Moge case by LaRue du Bay where she took judicial notice of the fact that the disproportionate number of people who are poor are women without having that to be proved in each individual case is one example, not quite so obvious, but perhaps another one vulnerability of children in other contexts, not quite as directly, has been recognized like in the Ford case on advertising aimed at children and that kind of thing. And to a lesser extent as well, which is in the news now, oppression of Aboriginal people. But obviously in an access to justice point of view, huge to be able to take judicial notice and assume these things from various reports without requiring the applicant to actually prove it. And I think that's really quite important. And we can have some debate. And again, some of this we chatted over lunch, whether the refuse or the lack of a specific reference to judicial notice was somewhat deliberate because this doesn't exactly fit the rules of judicial notice. Although it seems to me pretty fairly, obviously that's what they were doing as a unanimous court. Third, I think, I mean, third, vulnerability of children, especially in respect to cyber bullying. It's not accidental and I guess first of all, factually and then I'll comment the court. It's not accidental, I don't think that the high profile suicides of Amanda Todd and the local ones, in fact in all cases, were 15 year old or younger, young women, although young men as well have done it. And one of the points that's mentioned in the case in passing is that there is a particular vulnerability in young people to cyber bullying, not just in relation to suicide, but the other kinds of damages or harms that can come from that. And I guess particularly a recognition that that group, and again from the task force process, it's particularly hurtful to be excluded, like in theory as we get older, most of us anyway, get a bit thicker skinned and whether we're in the in group or the out group becomes less important, probably progressively less important as you age. But as a young person, particularly in elementary junior or even senior high, being in the in group or not being excluded is very significant, which raises interesting questions. And why are young people who are exposed to this committing suicide or other things, not all by any means, but significant numbers compared to adults? And I think partly the court is right whether they did the right way or not in saying there's a particular vulnerability, not just in young people generally, but in respect to cyber bullying. And this is another interesting question as to how broad this case is. It's not just vulnerability of children for all purposes, but vulnerability of children in respect to cyber bullying and in respect to bullying and so on. The other point which she builds out of that is that the impact of having a young person's privacy invaded is a bigger harm than it would be for an adult. Again, we can debate these things, but that's implicit in that. Paragraph 14, and I won't quote it because time is going by quickly, I'm sure, but she makes a point of saying that the exception to the open court process is tied to two things. The age of the child and the nature of the victimization, which is a really important point in terms of Rob's title, We're Going Forward. Is this a general all-purpose recognition of the vulnerability of children, or is it the narrower recognition of the vulnerability of children put together with victimization by way of bullying, cyber bullying in particular? Another interesting point on the vulnerability issue is a lot of connection to women, and particularly, she makes a point at a number of points, and it was true as Michelle indicated in the AB case, that it's sexualized cyber bullying, which is the other kind of classic legal question is, do you get your exemption by saying how many points do you need to get into the exemption category age? And as Michelle said, the interesting point about age not temperaments, chronological age, the thin-skull rule doesn't apply. It doesn't matter if you're particularly susceptible or particularly thick-skinned, it's an age thing, then victimization by way of cyber bullying slash bullying, mostly cyber bullying that she talks about, but maybe if you wanted to be narrower, sexualized cyber bullying, because she does make that point at several points, and I don't know if that's part of the exemption. Again, the high-profile suicide and tragic suicide of Amanda Todd was, of course, also sexualized cyber bullying, and it's not all the marble that that one was, a lot of analogies by Justice Abello for the court is well to victims of sexual assault in the criminal context. No real discussion of whether there should be a distinction between the criminal process and the civil process, because this was a civil defamation context, not a criminal one, but lots of analogies to the case which we had been dealt with earlier in the Canada newspapers case to say that a legitimate and appropriate exception to the open court process were the criminal code provisions that protected the identity of sexual assault victims, which, of course, is still there. It was upheld, contrary to charter challenges. So that also at least suggests a link to the sexualized component of this and how big that would be. Also interesting, lots of interveners, as there are in these cases, and one of them, Kid's Help Phone, in their fact, and we're cited at paragraph 25, is saying, well, this clearly having to give up your identity and be re-victimized, which was her analogy to the sexual assault victims, would in fact have a chilling effect on pursuing legal remedies generally, defamation in this context, but legal remedies generally, if the effect was that you had to give up your identity and have in the news again all of the same horrible stuff that was being said on Facebook, that's a strong disincentive to pursuing a legal remedy. And again, Obella cites the Kid's Help Phone factum to that effect, that that was a significant factor. And so that starts to get, and I'll come to this a bit more, the access to court aspect of this, because while she doesn't directly talk about it, not too far below the surface, I think, in the Bragg case is that if we don't grant this kind of anonymity, aren't we really effectively going to deny a lot of very deserving victims access to the court? Because the price is too high. And I think that's very practical and realistic consideration. Which point I'm on, I think it's four or five, wherever I'm, the next concept, privacy reconceptualized in the digital age. And on this one, I'll acknowledge right up front, there's a very interesting article by Karen Altis that is cited at paragraph 14, by Otto on 2011 article in the McGill Law Journal. And it's cited, but not really dealt with on any great length. But I decided to look it up and the article is really quite interesting. And what she suggests is that what we really need to do in terms of privacy and conceptualizing privacy is to reconceptualize it, to have a different approach to what we currently have. And she makes some very interesting arguments. First thing she says is that the court, in this case, she doesn't use this case, but the court frequently is a kind of knee-jerk reaction balances the competing interests. And that's the classic, I would think, Jim would know much more about this, but the classic issue in an open court context, in the one hand, free press in the open court, on the other hand, countervailing values of privacy and rights of access or whatever else it might be, and that we balance these two and make a decision. She suggests that that's only true because we conceptualize privacy in a kind of traditional common law way that is becoming out of date. And one of her more interesting observations, which is something practical to think about, I guess, is she rightly says that our general legal approach to privacy is that a person is entitled to a reasonable expectation of privacy in a particular context. So our privacy in the classroom is different from home, different again in a prison, different again in the school, all those kind of things. But it's a what's a reasonable expectation of privacy. But she then goes on to make, I think, a pretty good point, actually, that in the increasingly technological and interconnected and invasive digital world in which we live, we should have a smaller and smaller reasonable expectation of privacy. It's a shrinking concept. Like what would be a reasonable assumption of privacy 20 years ago is a lot smaller now because there's so many other ways Facebook and all these kinds of things that invade that. And that, in fact, the reasonable expectation of privacy doesn't say this, but could shrink to virtually zero. In fact, there are perhaps more cynical types than myself, although I'm reasonably far along there, but would say, well, privacy is one of the great quotes, privacy is dead, get over it. Like privacy, that's just an antiquated notion. You don't have that anymore in the modern world. And that's perhaps a bit extreme, but certainly I think it's correct to say that with the world of technology, the reasonable expectation of privacy is a shrinking concept. So in good sort of academic fashion, so given that problem, we'll just rethink privacy and redefine it. And I think she suggests, I only read this through once, but I think she's saying that that common law concept is pretty heavily tied to territory, a territorial kind of conception of privacy, which makes sense to me, that the idea of the home is your castle, there's certain territories or zones that the state in particular or people cannot invade and others where they can, and that that kind of property, territorial sense of privacy is the traditional one, and then what's reasonable to expect. Instead, she suggests we should go more with a kind of civil law, she sees it at least, conception, which is privacy as a human right, or privacy as an extension of personality, privacy not as a kind of territorial property thing, but privacy as an extension of your personality and as kind of a basic human right, which then isn't diminished by the advance of technology, in fact, quite the opposite, right? She doesn't, I'm adding some things on, I'm building on what she said, but I think it's quite the opposite that you could then say even more important that privacy is a fundamental human right because it's challenged everywhere, you know, technology's invading, so all the more reason we should now think about privacy as a kind of basic human right that needs to be protected. And then she goes on in another kind of clever little twist to say, therefore, at least access to court, and I'll leave this to Jim and others too, maybe see, there might be a bit of a fallacy in this, but she says access to the courts and access to justice is actually assisted by protecting the privacy of the participants. Certainly it's true in the bullying context, it's true in the victims of sexual assault, so that instead of being opposed to each other, that actually at least access to courts and protection within reason of the privacy of the people in the court process are allies in producing access to courts and justice. She then finesses, not entirely satisfactorily, and I'll leave that to Jim in the question period. She kind of then says, well, access to justice is kind of like transparency. So, and there's an element of that, but I'm not quite sure of that leap. And therefore, there really is not a conflict between protecting privacy and having an open court because then it's open to the participants who feel they can engage. It's less open to the press, it's less open to the general public, but it's more open to the actual victims who then have access without being scared away by having their lives displayed and attacked for a second time. Rather clever argument anyway, I think. In a sense, Justice Abala cites it for a really tiny minor point, which is fine, maybe she knew all this, but didn't develop any of this, which is kind of an interesting, much bigger thing. And therefore, none of this is in the case, but she does cite this article, which really talks about reconceptualizing privacy in the digital age. And it seems to me that has a lot of potential. So, just to go to the end here. The media, whatever point I'm on, media options going forward. In the report, the law is not the only media option, obviously education, preventive interventions, and so on, but certainly it does make some sense of putting on my cyberbullying chair hat to say that not having to give up your identity certainly makes civil actions more realistic, and we had some debate over lunch as well. How broad is that? Is that tied to defamation, which was the case here, or would that also apply if you were suing a school board for negligence? Because they didn't adequately protect you from cyberbullying in the school, and can you do that? And also have a ban on your identity, or any other civil actions, or even if it's a school process that has to do with discipline and you're following some school regulations, can you pursue your remedy as a student and not have to give up your identity? Not quite as strong perhaps as the defamation case, but there, and all of those are realistic. There are cases like that that we talk about in the report. Not the lack of identity, but those legal options. And finally, how broad is the exception? And I guess that's one thing I hope that will no doubt have in the discussion, and there's all kinds of ways you can look at. One of the broadest, I suppose, which I'm throwing out kind of controversially through Karen Altus, is reconceptualizing privacy in a way that it would be a much larger exception, not diminished by the technological digital world, and the court doesn't say that, to be clear about that, but that's a possibility to build on. Other conceptions of how broad privacy exception should be or how much of an exception to open courts are much narrower. Cyberbullying, or at least bullying, because she does say, age, children, and the kind of victimization, which in this case is cyberbullying. And the simplest question is, what if it was bullying? Probably fine, but not as clear. She's very, all of the quotes are about cyberbullying and its pervasive effect, so that's one. What if it were an adult? Pretty clear this is not an authority for an adult, given how much she's tied it to children, but is that a logical next step? An adult who's victimized by cyberbullying, who also wants to have an anonymous defamation action, so that presumably will arise. Does there have to be a sexualized component? A lot of discussion about the fact that it was sexualized and her analogies and connections to the sexual assault victim, so is that another narrowing of the category? Minimal harm to the open court process, towards the end, she acknowledges that, that this isn't really a very hard balance because the actual loss to the open court process is pretty small, and in fact, I'm sure Jim again, may raise some of these, but the only thing she kind of alluded to is media people saying, well, people are more interested in stories if they have a real name and face to go with it. And she sort of said, well, that may be true, but that's pretty minor when we look at what's on the other side. I'm sure it's not that simple, but that's sort of what she said. Or does it have to be a compelling case? I mean, this is a pretty compelling case at a time when you have all this happening in relation to cyberbullying. So it's the usual legal question, how big is the exception? And really a large and important question, I think, for litigators, for all kinds of people, how much can you enter the civil court process anonymously and therefore not have to re-victimize if that's the right term in terms of what you're complaining about? So I guess my final thought, and I'll end it, is that it certainly provides a foundation, I think, for a broader conception of privacy and more recognition of the importance of protecting the privacy of particularly vulnerable victims, how far it'll go, we'll have to see. Thanks. Thank you, Wayne. Really interesting remarks, and maybe I will pick up on a couple. And if we don't, then perhaps in the question and answer period afterward. Thank you very much, Michelle, for your really helpful explanation of the case. And finally, Rob, my old classmate, thank you for the invitation. It's a real pleasure to be here today. I disclaim any expertise, folks. I'm a lawyer for Parks Canada. What I do have in abundance is an interest in the topic, a real academic interest. And maybe by the time we're done today, you'll share it with me. There are experts in the room, I won't single them out, but there are experts in the room. I'll tantalize you with that. Look, AB is notable for establishing for the first time an automatic right of a class, here children, to anonymity at common law in pursuing civil claims, here arising from sexualized cyberbullying. That's what I think AB is notable for. AB did so by relaxing the requirement for evidence to support a request for discretionary publication bans and similarly, that's how AB did it. That requirement for evidence had been well-established by the Supreme Court, and it helped preserve the rule of open courts and the guarantee of freedom of expression by limiting discretionary publication ban relief to exceptional cases. Cases where there was approved risk of specific harm. Now for the fine print, and the views expressed here today are mine. They shouldn't be taken as those of my employer, Justice Canada, the Federal Department of Justice, and I've already told you I'm a lawyer for Parks Canada and any of it. Look, most news media are for profit. Even the ones that do not operate for profit collect information and present news in the manner they think will best achieve the largest possible audience. The fact is, however, most people can't spare the time to go to court. You guys can't spare the time to go to court. Most people rely on media for information about courts and cases so that they can arrive at informed opinions, and if they so choose, make informed criticism. I know that Lord Denning is a popular man in these halls. Lord Denning said, quote, I think the part played by the newspapers in the administration of justice is as significant as that played by lawyers and all of us. The Supreme Court of Canada more than 20 years ago acknowledged this reality, and it still does. In Edmonton Journal, the court said freedom of expression includes the right of the media to not only express news about court and cases, but to collect that information from the courts. Freedom of expression includes the right of the public as listeners, quote, unquote, they use the word listeners as listeners to receive that information. In having access to information in courts, the media are engaging in a constitutionally protected exercise, and they are enabling their readers and listeners and viewers to engage in one as well. The constitutional protection is in place not only in respect of court hearings. This is a misconception. The constitutional protection is not only in place in respect of court hearings, but it also applies in respect of court filings, like pleadings, and all other information deposited in courts like exhibits or executed search warrants. So names, insofar as they're spoken in court, or contained in pleadings or other filings, are public. And although frequently described in many decisions, including AB, as merely, quote, a sliver of information, the fact is names are captured within the open court rule and the constitutional guarantee of free expression. In the AB case was about a name. The rule of courts is not absolute and freedom of expression is not absolute. As with most rules and rights, there are legitimate exceptions. In order for most to least intrusive of the rule of openness and the guarantee of free expression are in-camera or private hearings, ceiling orders, publication bans, and anonymity orders. Anonymity orders entitle a participant in a process, in a court process, to participate anonymously. And where you see a request for an anonymity order, it's almost always, and I can't even think of an example where it wasn't, it's almost always coupled with a request for a publication ban on the identity. In AB, the relief claimed was an anonymity order and a publication ban on the information revealing AB's identity and the contents of the Facebook page, as you heard Michelle say earlier. Publication bans and similar relief come in two kinds, two flavors, mandatory and discretionary. Mandatory bans are generally found in legislation and they fall in one of two categories. They either apply automatically or they apply on order of the court in circumstances where the court has no choice but to grant the order on request. The criminal code, for example, is replete with examples of mandatory bans. And the constitutional challenge to mandatory bans follows the traditional Oaks analysis. Most mandatory bans in Canada have been challenged and most have survived. AB was about discretionary relief. AB was about discretionary relief. Discretionary bans, whether they're legislative or common law, have one thing in common. A judge has a choice to grant the relief. Whether the discretionary relief is legislative or common law, the legal analysis is generally the same and it follows what has come to be known as the Dejeuner-Mentuk test. Dejeuner, decided by the Supreme Court in 1994, is a seminal decision in media law. I'll confine my comments to only one aspect. Until Dejeuner, a conflict between an accused's right to a fair trial and the media's right to freedom of expression was generally resolved in favor of the former, the accused's right to the fair trial, even after the charter took effect. An example of this in the Nova Scotia context was a case involving then Senator Irvine Barrow. Chief Justice LaMaire, as he then was, clarified that neither right trumped the other. This echoes all the way to today in December in the case NS with the Nakib, is it called a Nakib? Repeated that fact, now in that case it was a context of freedom of religion versus an accused's right to a fair trial. But even as recently as December, the Supreme Court of Canada cited Dejeuner and repeated the fact charter rights do not trump one another. Chief Justice LaMaire said a balancing is required. One that fully respects the importance of both rights. He then fashioned a two part test, come to it in a minute, and he placed the burden of proof at both stages of that test on the party requesting confidentiality. Flash forward to 2001, the Supreme Court released its unanimous decision in Mentuk. In that case, the Crown had sought a publication ban to protect what it said was the confidentiality of an undercover police operation that by now, everyone in this country has heard of, Mr. Big. And also for the safety of certain police officers who at the time were involved in ongoing undercover operations. In Mentuk, the court took the Dejeuner test and reformulated it into what has become known as the Dejeuner Mentuk test. As I can't not tell you the test, I'm going to read it aloud. As I read it aloud, focus particularly for our purposes today on the first part. 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 alternative measures will not prevent the risk. And B, the salutary, I say I use the word positive, the salutary effects of the publication ban outweigh the deleterious, I use the word negative, 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 of a fair and public trial and the efficacy of the administration of justice. So remember under that first branch, confidentiality must be necessary in order to prevent, quote, a serious risk. What I want to underscore particularly is this. The court said that the risk in question has to be, quote, real and substantial. That is, said the court, it must be a risk the reality of which is well grounded in the evidence. And then a few paragraphs later, the court said, and I think this is key, it is precisely because the presumption that courts should be open and reporting of their proceedings should be uncensored is so strong and so highly valued in our society that the judge must have a convincing evidentiary basis for issuing a ban. And to put Mentuck in its context, reference has to be had to the Supreme Court's decision in 1996 in CBC versus New Brunswick. That case stemmed from a court order closing the doors on a criminal trial, pursuant to discretionary authority in the criminal code. The Supreme Court affirmed the evidentiary burden on the person requesting confidentiality and made clear the need for, quote, a sufficient evidentiary basis from which the trial judge may assess the application and upon which he or she may exercise his or her discretion judicially. The court in that case, by the way, allowed that where facts are not in dispute, where facts are not in dispute, reliance can be placed on statements of counsel. And in 2002, the court released its decision in Sierra Club and it imported the DeGene Mentuck test into the civil litigation realm, as specifically in that case, in the context of a request for a ceiling order to protect what was said to be confidential commercial information. This was the legal reality when AB was heard in the Nova Scotia Supreme Court in May 2010. And as Michelle mentioned, there was no evidence led by AB or on her behalf on the risk of harm, on a risk of specific harm to her in the absence of the requested anonymity order and publication bans. Justice LeBlanc said, quote, the Facebook profile was published in March and this application was heard in late May. Yet there was no evidence offered respecting any effects, any effects the publication had in the interim, close quote. Without any such evidence, the case law directed the Supreme Court case law directed Justice LeBlanc to the only possible outcome. And as Michelle mentioned, the Court of Appeal dismissed the appeal in essence for the same reason, the lack of evidence. On behalf of the unanimous panel and over the course of lengthy reasons, Justice Saunders said, quote, it should have been a relatively easy thing for the appellant to produce evidence showing harm. A parent, a relative, a teacher, a nurse, or a doctor might easily have sworn an affidavit which would document the noticeable changes perceived in AB, thereby offering evidence of past harm, evidence of past harm, which would then assist the Court in predicting future harm or at least evaluating the risk of harm. As Michelle explained quite clearly to us, at the end of September, the Supreme Court of Canada released its decision and allowed the appeal in part. The Court protected AB's identity, but since her identity was protected, the Court said there wasn't a need for the publication ban on the contents of the Facebook page. The reasons were brief and written by Justice Abela on behalf of a unanimous seven-member panel. Justice Abela said, quote, recognition of the inherent vulnerability of children has deep roots in Canadian law. And then she pointed to, among other things, mandatory statutory bans in the youth criminal justice and child protection fields. She later said it was, quote, logical to infer that children may suffer harm through cyberbullying, close quote. And then she later identified, quote, the inference that absent a grant of anonymity, a bully child may not pursue responsive legal action, close quote. And Justice Abela found support in Professor McKay's Task Force report, which she appeared to rely on for the truth of its contents. And she also relied on other studies, also apparently for the truth of their contents. Justice Abela concluded her analysis by comparing the harm to child victims of cyberbullying to the loss of the media to report names, which she said was minimal and relatively insignificant and unimportant. And I suspect her comments on that point would find a great deal of support here in the room and elsewhere. Leaving, the argument goes, leaving aside names, all other aspects of the proceedings are open and the media may report on them. In response to the argument of the media, well, technically in this case, the amicus curiae, that AB had tendered no evidence of harm. In response to that argument that was made by the amicus curiae, that AB had tendered no evidence of harm, Justice Abela said, quote, while evidence of a direct harmful consequence to an individual applicant is relevant, courts may also conclude that there is objectively discernible harm. A little later, Justice Abela said, quote, absent scientific or empirical evidence of the necessity of restricting access, the court can find harm by applying reason and logic. Justice Abela said there was a precedent for a finding of, quote, objective harm, close quote, in the context of upholding limitations on freedom of expression in open courts. She cited two decisions of the Supreme Court in 2011, Société Radio-Canada contre Québec and Air contre Diffour. I can tell you that neither of these decisions, neither one used the phrases, quote, objectively discernible harm, close quote, or, quote, objective harm, close quote. My favorite is Société Radio-Canada. It was a media challenge to court-imposed restrictions on filming and interviewing in courthouses in Québec. A close examination of that case reveals that at the court of first instance, the hearing lasted 17 days and featured, quote, many lay and expert witnesses, close quote, and, quote, extensive documentary evidence, close quote. The limitations on filming and interviewing in courthouses were said to be for the purpose of preserving the serenity and decorum of the place and minimizing stress on witnesses and others. Folks, these risks were not objectively discerned. These risks were well grounded in the evidence and the findings of the trial judge at first instance. Professor McKay discussed judicial notice. I don't have a lot to say on that point, but perhaps it's something we can discuss at greater length when we have our question and answer period. My view is that it would be tempting to label as judicial notice the reliance by the Supreme Court in AB on, quote, objectively discernible harm, close quote, quote, objective harm, close quote, quote, reason, and quote logic. But I'm reluctant to do that since AB nowhere used the phrase, nowhere did it use the phrase judicial notice. And it's not clear to me the approach to the evidence in AB would have lived up to the Supreme Court's own requirements for judicial notice in fine and spans. So all of this takes me back to what I said at the start. The requirement for case specific evidence in support of a request for discretionary publication ban relief had been well established by the Supreme Court. It helped preserve the rule of open courts and the guarantee of freedom of expression by limiting publication ban relief to exceptional cases. Cases where there was approved risk of specific harm. AB has relaxed this requirement for evidence and in doing so has established for the first time an automatic right of a class, children, to anonymity at common law in pursuing civil claims arising from sexualized cyberbullying. I acknowledge the overwhelming sympathy for AB, a girl, a victim of sexualized cyberbullying. Like those judges on the court of appeal, I'm a parent and I have a daughter. My comment on the decision of the Supreme Court, however, is best expressed by words of the Manitoba Court of Appeal. In 2005, the television current affairs program W5 applied to the Manitoba Court of Queens bench for access to a videotape statement entered as an exhibit at a preliminary inquiry. After the preliminary inquiry, the accused in question pleaded guilty to aggravated assault and was sentenced. The application was supported by the crown. Normally the crown, by the way, will take either no position or oppose. In this instance, the application was supported by the crown, but it was opposed by the accused. And the judge of the court of Queens bench refused W5's application without any evidence supporting the refusal. No evidence supporting the refusal. The judge refused the application on the basis of what he described as, quote, compelling common sense and logic, close quote, and, quote, my favorite, judicial experience. The Manitoba Court of Appeal allowed an appeal and over the course of lengthy reasons said, quote, a court in and of its own without anything further should not be relying on simple common sense and logic when the effect of a decision is to limit a charter right. So I'll close with a few comments for what they're worth on the possible effects of AB and a few questions that I think are raised by AB. And maybe that's a nice segue then afterward into the question and answer session. Children have an automatic right to anonymity in pursuing civil claims for sexualized cyberbullying. That could be said with certainty. An interesting question is whether it matters if it's a defamation claim or a negligence claim that we had this discussion at lunch and I don't think it does. As for all other persons, including all children, other than those pursuing civil claims for sexualized bullying, a judge must now be open to an argument at the first stage of the Dejeunee-Mentuk test of objectively discernible harm. At least today, it is no longer the case that a judge can reject a request for discretionary publication ban relief for the sole reason that there is no actual evidence of harm specific to the individual. This was the loss to the media. For whatever reason, I have theories, but I don't know. For whatever reason, evidence is not tendered in a surprising number of applications and motions for discretionary publication ban relief. AB was not exceptional in this regard. Those applications and motions were failing regularly for that reason. We can comfortably predict at least a couple of the classes that will likely succeed in establishing objectively discernible harm. Number one, children pursuing civil claims for sexual assault, although you don't typically see that, they're not typically pursued until children become adults, but children pursuing civil claims for sexual assault or simple assault, bullying. Now, Wayne mentioned adults. I believe that there is a class of adults that will succeed in establishing objectively discernible harm. And it's women pursuing civil claims for sexual assault. And I think there'll be others. Where AB is most likely to be applied are those cases where plaintiffs seek to eliminate or at least contain breaches of privacy online. And I have my friend Jane O'Neill to thank for pointing this out. Michelle mentioned that Jane was her co-counsel. Jane gave me a couple of examples with which I agree. An ex-wife whose personal nude pictures are posted online by a vengeful husband or a lost cell phone with sex uploaded online. I think the common thread in these cases is that the remedy, which is presumably an injunction undoing the privacy breach, that remedy would be incomplete unless the privacy is assured as well in the court proceeding. So I think it follows a different analysis in AB, but I think AB is going to be applied in those cases. The only written decision, the only written decision to date to cite AB would appear to suggest a legacy for AB outside the publication ban realm. Reall of properties limited was a decision of the Nova Scotia Utility and Review Board in November. On the strength of AB, the board relied on a quote, reasonable and logical, close quote, inference, use the word infer, inference, quote, without specific empirical evidence, close quote. It did that in reaching a finding in the context of preliminary motions in a planning appeal. So I promised a few questions. One is the authority of a judge in determining objectively discernible harm to rely on studies and reports for the truth of their contents. AB would appear to condone this without requirement for studies and reports to have been properly put before a judge at first instance in accordance with the rules of evidence. Is that what was intended? What if studies and reports are contradictory? How was a judge to determine their credibility? We're blessed here. No one here questions the wisdom and credibility and intelligence of Professor McKay. Not yet. Not yet. Not yet. But how was a judge, but not all studies have the same provenance. Not all reports kind of have the same provenance. We know that there are interest groups and think tanks that produce studies and reports. All of them with overt or covert policy objectives. Do we take, do we receive those for the truth of their contents? What if a party wishes to cross examine the author of the study or the report? My next question is altogether different. What does it mean to be a child? When is a child no longer a child entitled to anonymity? Do we accept the statutory age of majority as the cutoff? Civil litigation generally takes longer than criminal proceedings, a lot longer than criminal proceedings and can take several years to reach trial. What happens if the child plaintive becomes an adult in the middle of proceedings? We've already heard that AB is now 18. Is she a child? There's a concept in common law discretionary publication ban relief that the ban is to be time limited. One of the things that judge has to turn his or her mind to is, okay, if I'm going to impose a ban, what's the time limit on it? Is there a time limit on these bans? Or are they permanent? My final question I think is the most interesting. It puts the focus on the child painted as the villain here. The cyber bully. We haven't talked about the cyber bully. Is anonymity equally available to children named as defendants in civil claims for sexualized cyber bullying? AB was specifically about child victims of sexualized cyber bullying. However, until such time as a claim is proved, until such time as a claim is proved, there is a potential for a child to be wrongly accused of being a cyber bully. Anyone here want their children to be wrongly accused of cyber bullies? In this day and age, that potential exists. And there is precedent in criminal law to protect the names of children accused of crimes so as to guard against stigma and encourage rehabilitation. I think one must also consider the appearance of unfairness in protecting the identity of a child plaintiff, but publicly exposing the identity of a child defendant. There is a real prospect here of entirely anonymous lawsuits in public courts. Thanks. So this is the time we have planned for discussion. I'm going to go off piece just a little bit because Michelle was very generous with the time that she allowed her two co-speakers. Thanks, she wants her bottle. And apparently I read her mind. So I think it's only fair, Michelle, that you've got the floor. All right, we're going to begin. First of all, just procedurally, the AB case arose in the context where as I mentioned earlier, we were trying to unmask the bully. So at the stage that this case was at, while it was being considered, the bully was anonymous. So in pursuing the remedies that we ultimately got, we were just looking to level the playing field. The bully was anonymous, AB wanted to stay anonymous until such time as she could even find out whether the bully was going to be unmasked. Had the IP address led us to Joe's internet cafe where there's free unsecured wireless, we were going to hit a brick wall. So practically, this was not some far-reaching, unequal pursuit. It was essentially, as I say, leveling the playing field. I applaud the Supreme Court of Canada. They figured out what was going on in today's society and reacted to it. It's great, let's talk about what they were dealing with in 1994 when they rendered the Dajonet test, fine. But in 1994, there weren't kids with text-based mobile devices on them, who knows how many times an hour, doing this kind of harm to one another forever. Essentially, the legacy of whatever is put on the internet is well-known to all of you. Nothing's ever really deleted. I don't lose any sleep at night that victims, female, adult victims of sexual assault might be able to pursue claims anonymously. And I'm not losing any sleep at night that child victims of cyberbullying might be able to seek remedies anonymously without having to be re-victimized. In what I do, I'm dealing with the people. And I respect that academic discourse is welcome and an important part of the development of our law. But the results for AB of this decision are fantastic. She gets to unmask her bully. She knows who that person is now. She and her family get to assess what to do next. And all of that went on without her having to re-suffer the harm that led her to take on this pursuit in the first place. The fact that no one filed an affidavit saying she's harmed, I don't think is that big a deal. As I've mentioned, and I would be really interested in the study and obviously don't have the time or ability to go look at all the affidavits that are filed across the country when these bans are successful, I would bet, based on even the reported decisions that I did study in this case, that a bunch of them are evidentiary garbage, which is not a technical term, but pontificating or postulating that something might happen in the future. And having courts accept that as satisfactory for Dajone and then when something as obvious as harm to children from cyber bullying is attacked as needing specific evidence and not worthy of judicial notice, it's just not. I don't think it's not what our society is looking for. So, you know, Jim's questions are interesting. Lane, I think you and I are getting up on the same side of the bed on this. This is not a huge assault on the democratic principles that Canada's built on. What is the media going to do with A.B.'s name? The for-profit media looking for the largest possible audience. What are they gonna do? They're gonna go find her at her school and try and interview her. Oh, how did this make you feel? Because really, that's all that's missing from this story. They knew everything about the story without her name. Nothing was added by her name except to go after her personally. And as I say, none of it's troubling me at all.